
    Partridge vs. Dorsey's Lessee.
    Error to Jlnnc-Mnmdel County Court. This was an action of ejectment for a tract of land called Chew's. Vineyard, originally brought in the late general coui;t, and on the abolition of that court transferred to the county court. The facts, as agreed upon, were these: Caleb Dorsey, being seized in fee of Chew's Vineyard, by his will, dated the pith of March. 1772, devised as follows: “As to my real estate, I give and devise unto my son, Samuel Dorsey,. aqd the. heirs of his body lawfully begotten, my land call-’ ed Chew's Resolution Atanor Resurveyed, as also the land called The Gore, Cheiv’s Vineyard, also ope undivided moiety of my land in Baltimore county, called Taylor's Forest; and all that part,” &c. “But in case my said, son Samuel Dorsey is at this time married, or has disposed of himself in marriage to Margaret or Peggy Sprigg,. of shall hereafter marry her, or dispose of himself in marri-. age to her, then I do hereby revoke, annul, and make absolutely void and of none effect, my said devise, legacy and bequest, to my said s*m Samuel Dorsey as aforesaid, except 500 acres of land lying in Frederick county,, being part of Caleb's Delight Enlarged, all which my said lands ami personal estate I do thenceforth and in such case give, devise and bequeath, unto my son Edward Dorsey, and the heirs of his body lawfully begotten, and for default of. lawful issue, then to remain to my above named daughters, and their heirs, for ever.” On the death of Caleb Dorsey, which happened shortly after the execution of his will, Samuel Dorsey entered into Chew's Vineyard, claiming the same under and by virtue of the said will, and became seized thereof as the law requires* and on the 2d day of May 1777, he entered into an agreement with 1 
      John Wells to convey to him part of the said land, described by courses, &c. supposed to contain 350 acres, in consideration of the sum of £1000, to be paid when the skid land should be conveyed, Sic. if the part to be conveyed should contain more than 350 acres, then to be paid for in proportion, ire. Samuel Dorsey departed this life in the month of September 1777, intestate, and without having 'executed any deed to John Wells for the said parcel cf land. At tlie timé of his death, he left a son, Edward Hill Dorsey, the lessor of the plaintiff, who was a minor of the age Of seven years, and who is the eldest son and heir at law of Samuel Dorsey. John Wells-, on the 35th of January 1779, instituted a suit in the court of chancery against Edward II. Dorsey, the heir, and Margaret Dorsey the administratrix, of Samuel Dorsey, in which said suit the following proceedings were had: The bill stated, that Samuel Dorsey, deceased, became seized in fee, in his life time, of a tract of land called Chew’s Vineyard, situate in Jlnne Jlrundel county, containing 950 acres, and on or about the 2d of May 1777, agreed to dispose of to the complainant 364 acres, part thereof, in consideration of £1040; and to perfect and ascertain the terms of the said contract, Samuel Dorsey, together with the complainant, made and executed the before mentioned agreement. That the complainant entered upon and took possession of the land, with the consent and in the presence of Samuel Dorsey, and had since cultivated, improved, and enclosed it. That the quantity is 364 acre's, and the complainant became indebted therefor £ 1040. That he paid to Dorsey, in his life-time, £925. That Dorsey died in September 1777, seized in fee of the land, without having made any will, or without having executed any indenture, or other instrument of writing, to convey the said land to the complainant, as by the agreement Dorsey had obliged himself to do, and fully intended, (as he frequently told the complainant,) had he not been prevented by sudden death. That since Dorsey’s death, letters of administration had been granted on his personal estate to Margaret Dorsey, his widow. That Edward II. Dorsey, an infant of tender years, to wit, of the age of seven years, or there - abouts, is, heir at law (o Samuel Dorsey, to whom the said parcel of land hath descended in fee simple. That the adanitmtairix h well acquainted with the agreement, and of the payments, made, and has frequently expressed her willingness, and desire1 to comply with the terms of the said agreement, and to convey the land to the complainant; but that the complainant had been advised that the said conveyance would be inefficient, and of no validity, on ac». count of the minority of the heir at law of Samuel Dorsey‘ unless made and executed under the particular direction, and by the decree of the court of chancery. That being' remediless unless by- the interposition of the said couyt, &c. to the end that Margaret and Edward might true answers make, &c. that Edward, by his guardian, might be compelled to make over and convey the said land to the complainant, his heirs and assigns, agreeably to the contract aforesaid, &c. prayed a writ of subpoena, &c. The proceedings state, t{iat a subpoena issued, returnable to February term 1779, at which time Edward II. Dorsey appeared in proper person; and Margaret Dorsey was appointed his guardian to answer and defend the suit, who being present, accepted, &c. and at the same term she exhibited her answer, as well for herself as for the said infant, stating that they did severally admit that Samuel Dorsey, in the bill mentioned, was seized in his life tima of and in- the said tract or parcel of land called Chew's Vineyard, and that he made the agreement, &c. That Wells entered upon the possession of the land, &c. Thai the quantity is correctly stated, and they believed the payment as stated was made, but that the sum of ¿el32 8 2, or thereabouts, with interest, &c. was still due, which sum they believed the complainant would pay. They further admitted, that Samuel Dorsey departed this life in September 1777, seized in fee of the'land aforesaid, without having made any deed of conveyance of the said land in pursuance of his said agreement, but they believed he fully intended to comply with the terms thereof had he not been prevented by a sudden death. That since the death of Dorsey, lettei-3 of administration had been granted to the said Margaret, who was his widow; and that the other defendant, Edward II. Dorsey, is an infant of tender years, and heir at law of the said Samuel, to whom the said tract or parcel of land descended in fee upon the death of his said father Samuel. That she was well acquainted with the transaction between the ’ complainant and the said Samuel, and she had frequently expressed a willingness to have the same settled agreeably to the agreement, and was desirous that the laud should be conveyed to the complainant without further expense or delay, as she was in want of the balance due on the purchase, &c. to satisfy demands against the estate of her husband; but they were advised, that any conveyance made by them would be ineffectual, by reason of the minority of the said Edward, unless made under sanction and by decree of that honourable court. Therefore the defendant, Edward Id. Dorsey, being an infant of tender years, submits himself, by his guardian, to the judgment of the court, and humbly hoped that his rights might be protected and saved to him, &c. The following decree was passed by
    
      heir or issue fn tail, claiming per for mam dotii, Is not compellable to fulfil o contract entered Tito .by *h© tenant in tail, for a sale of the entailed land
    The court of «haneery has no authority to decree a specific execution of’$ueh a contract against the heir of issue in tail, the act of November 1773, ch. 7, extending 'only to cases where the heir was hound to fulfil the contract of his an-
    Where the court chancery did so decree on a false representation of the facts, and the 3uestion, whether ic heir in tail was bound iti con* ■vey the huid in completion of die contract, was not ¿efere the chancellor, nor could arise m the case— ■Wheihev or not «íicli decree, and «he conveyance made pursuant thereto, do con-«ludo the heir in tail, and operate to divest his right to the land? Quere
    
    C D, by his will, fievisi’d to his son S, and his heirs m tai . certain lands, with the following restriction or proviso, “but m case my 'said sun S is at this tune married*'or has disposed df himself in marriage to M S, or sfi.il! hereafter marry her, or dispose of himself in mai riage to her, then 1 do hereby revoke, annul, and make absolute)!* void and:of none effect, my said devise to my sain non £ as aforesaid, except 500 atíiTsofiaud called,” &e. “All which my said hinds I do thenceforth, and in such case, give and devise to my son E, and the heirs nl h.s body lawfully begotten; and for d< fault of lawful issue, then* to remain to my abose na.med daughter-, and their heirs, for over.” At the time C D made his will, his son S was married to M Si and. after the death of C i>., hjs$,on S petitioned tiu legislaturet« annu the yestVictivc clause in his other’s will, .he devisee over, an infant of Li years, and the daughters'of the - testator, with die husbands of (hose (ha(’were married, joining in the petition; and “it appearing to the legislature that the marriage of S with M S, can lie no disparagement,'’ an act wa* pmsi d declaring “that the said condiq'un-or iestrictn;e clause shall lie w holly void, and that the said yiil shall stand and be construí d as if no such clause had beei^i contained therein.,J — Held, hy the county court, that the act of assembly was not Void, hut effectual ami operative to annul the condition or restrictive clause sub-’* joined to the deviso to S in the will of Cl), * ■ ••
    The judges of the appellate court be£ng divided in opinion, the judgment of the court below is af-
    Tlie power and jurisdiction of the general assembly of Mm'yhmlm 73, over all subjects of hgi^ation within the limits of Maryland, ^ereasgieatanii tianvc^ndrint as the power and jurmuction the1 yavUaiufcntof England, y,iihiu,tin! *cupc of theirauthovlty. i?er Chase, Cli. 4,
    
      Rogers, Chancellor. “It appearing, upon due examination, that the said several facts contained in the complainants bill of complaint are true, and the said Margaret Dorsey, the mother and natural guardian of the said infant heir, having been appointed a guardian for him by the chancellor, to defend and answer the said bill, and to do all things appertaining thereto; and the said Margaret Dorsey having appeared to the said petition, and accepted the appointment of guardian to the said infant heir, and not showing any cause why the petition aforesaid should not be granted; and having signified to the chancellor that she does not know of any objection to granting the complainant the relief prayed for; and all parties concerned having been fully heard — It is ordered, adjudged and decreed, this 10th day of February 1779, on and with the assent of the said Margaret Dorsey, as guardian of the said Edward It. Dorsey, that the said Margaret Dorsey, as guardian of the said Edward II. Dorsey, do convey and assure to the said John Wells, his heirs and assigns, in fee, all that parcel of land, being part of a tract or parcel of land called Chew's Vineyard, lying and being in Anne-Arundel county, beginning,” &c. “containing 364 acres, upon his the said John Wells paying to the said Margaret Dorsey, as administratrix of the said Samuel Dorsey, the principal sum of £ 132 8 2, current money, and also interest from, &e. saving and reserving liberty, according to the act of assembly in such case made and provided, to the said Edward II. Dorsey, to show cause, within six months after he shall Jjave attained the Ml age of 21 years, and also forth® fie its of the said Edward II. Dorsey, if he shall not Si? long live, in six months after his decease, if the said heirs shall then be of full age, and if the said heirs shall not ,. ° , then be or full age, in six months after such heirs shall have attained his, hér, or their full age, why such conveyance • as above decreed ought not to have been ordered or di» récted.” In pursuance oF this decree, Margaret Dorsey¿ the giiárdián of Edward Hill Dorsey, made and executed an indenture on the 37th of February 1779. Edward Hill Dorsey, at the time this suit was .instituted, had attained the age of 34 years, and he had not at any time heretofore tnade application to the court of chancery to show cause Why the said dec tee should not have been made, or such conveyance, so decreed, should not have been ordered or directed. The parcel of land, for which the present suit is brought, is the' same land described in the will of Caleb Dorsey, and in the said decree and conveyance. At the time Caleb Dorsey executed his last wiíl and testament, Samuel Dorsey was married, and had actually disposed of himself in marriage to Margaret or Peggy Sprigg, mentioned in the same will. In November 1773, the following act of assembly passed the legislature of Maryland, eh. 37. “An act for the relief of Samuel Dorsey, of AnneArundel county,” The act, after reciting the will of Ca- ■ leb Dorsey, and the restrictive clause' ilpon his son Samuel’s marrying Miss Sprigg, States^ — “And whereas the said Samuel Dorsey, by hia humble petition to this general assembly, hath prayed an act may pass for annulling the said restrictive clause in his father’s will, and Edward Dorsey, the devisee over, now an infant of the age offourteen years, and upwards, Charles Ridgely, and Rebecca his wife,- PPüHam Buchanan Junior, and Peggy lira wife, Míchdd Pite, and Mary his wife, and Eleanor Dorsey, have j oined in the same petition, and William Goodwin, and Milcah his wife, have not objected against such act; the said Rebecca Ridgely, Peggy Buchanan, Mary Pue, Eleanor* Dorsey? and Milcah Goodwin, being the daughter's of the said Caleb Dorsey, and devisees over in default of issue of the said Edward ■ Dorsey; and it appearing that the marriage' of the said Samuel Dorsey, with the person described in the said will by the name of Peggy or Margaret Sprigg, caff be no disparagement, Be it therefore enacted,” &c. “That th<£ said condition, or restrictive clause, shall be wholly veld, atid that the said will shall stand and be coBstrued as if no such clause had been contained therein”
      . At the time of the passage of this act, Edward, Dorsey, brother of Samuel, was a minor, about fourteen years of age. The lease, entry and ouster, as stated in the declaration in ejectment, were admitted. The question submitted to ilve court was, Whether or not the plaintiff was entitled to recover notwithstanding the deeree of the court of chancery and the conveyance executed in pursuance thereof?
    
      The cause was argued in the General Court at May term 1798,
    before Goldsborough, Ch. J. and Chase, and Hu-VALL, J.
    
      Ridgely and Shaaff, for the Plaintiff.
    A court of chancery possesses no power, independent of legislative provision, to compel a tenant in tail to a specific performance of a contract made by the ancestor, for entailed land; and under the acts of November 1773, ch. 7, and October 1778, ch. 22, the court of chancery in this state has no such power. They referred to 1 Fonbl. 291. Ross vs. Ross, 1 Chan. Cas. 171. Norcliff vs. Worsley, Ibid 236. Fox vs. Crane & Wight, 2 Vern. 306. Weale vs. Lower, 1 Eq. Ca. Ab. 266. 2 Com. Dig. 122, 127. Sayle vs. Freeland, 2 Vent. 350. Davy's Case, 1 Ld. Raym. 531. Coventry vs. Coventry, 1 Stra. 602. Firebrass's Case, 2 Salk. 550, Powell vs. Powell, Finch, 278. A tenant in tail, before the act of June 1773, ch. 1, authorising him to convey by deed of bargain and sale, could not alien at common law, except by common vecovery and by fine. 1 Fonbl. 289, 290, 291. This was the law until the act of June 1773, ch. 1, which was' similar to the act of November 1782, ch. 23. But no power is given by this act by which a decree in the case of a tenant in tail is made as good and available as in • case of a tenant in fee. The decree in this case was obtained by suppressing the truth, and suggesting what was not true; and it cannot be contended that such a decree shall be an estoppel to all inquiry in this court, where the sole power of deciding the case is constitutionally vested. The decree is set up and offered in evidence as an effectual-bar to the plaintiff’s recovery; and it will be said, no doubt* that if the plaintiff prevails, this court will reverse a decree of the. court of chancery, and exercise the powers of an appellate court, it' is not contemplated to call in question the decrees of the court of chancery, where its jurisdiction was competent, and rightfully exercised; but where a decree of that court, is offered in evidence in this court,, on a question where that court has notoriously no jurisdiction, and where the chancellor was evidently imposed on, or deceived by a misrepresentation of facts, surely this court will not say that such decree shall be conclusive on them. In all cases which the laws of our country have intrusted to the decision of the court of chancery, its decrees are conclusive evidence, as if, for instance, the lessor of the plaintiff had only an estate in fee, because the chancellor would then have exercised proper jurisdiction; will the court, by deciding that a tenant in tail is not barred of bis remedy at law by a decree in chancery, where the chancellor hath no jurisdiction, and which decree was only intended to affect and bind him as a tenant in fee, reverse such decree? Or act as a court of appeals? No one who has seriously reflected on the case, and who is acquainted ■with the chancery jurisdiction, and their powers, can seriously advocate the affirmative of these questions, The powers of this court are the same as those of the King’s Bench in Great Britain. It has a superintending power over all other inferior jurisdictions, either civil, ecclesiastical or military. The court of King’s Bench hassuperiatendency over all inferior jurisdictions, and are by law intrusted with the exposition of such laws and acts of parliament as prescribe the extent and boundaries of their jurisdiction. 4 Bac. Ab. 250. The King’s Bench may prohibit any court whatsoever, if they exceed and transgress their jurisdiction. No court in Westminster Ball bu t may be prohibited by the court of King’s Bench, if they exceed their jurisdiction. 18 Vin. Ab. 50. To prove that the chancery is one of those courts over which the court oí King’s Bench has jurisdiction, they cited Davy's Case, 1 Ld. Raym. 531. 4 Bac. Ab. 252. To show how far decrees in chancery are evidence in courts of law, they referred to Esp. Dig. 758, 760, 761, 762, Robins vs. Crutchley, 2 Wils. 122, 127. Bull. N. P. 243, 244. Burton vs. Fitzgerald, 2 Stra. 1078. That the decree did not operate as an estoppel, they cited 3 Com. Dig. 269, 271, 272, 273. Co. Litt. 352, a. Hayne vs. Maltby, 3 T. R. 440. Fairtitle vs. Gilbert, 2 T. R. 171. Esp. Dig. 752, 753. 10 Vin. 
      
      Ab. 421, 422, 480. James vs. Landon, Cro. Eliz. 36, 4 Inst. 84. 1 Bac. Ab. 559. If the truth can be disclosed, it appears that the court of chancery has given a decree for which that court had no authority — a decree for a con» veyance by a guardian of a minor in tail. Before the act of October 1778, ch. 22, the chancellor had no power to decree a conveyance by guardian; and if such conveyance was made, it was inoperative, JJefore the act of 1785, ch. 72, a decree of the court of chancery only acted on the person, and not on the right, of course without the deed it did not divest the title. Com. Dig. 45, 106. 1 Fonbl. 29. The power to decree a deed from an infant, is only under this law, and die decree here cannot divest the title of the lessor of the plaintiff, it not being conformable to that law. The law says, where the party hadpawe$ to bind, the chancellor may decree a deed. Here the party had no power io hind.
    
      Imrlin, (Attorney General,) for the defendant.
    Thp. case stated for the opinion of the court, has submitted two questions for their consideration — Whether as the court of chancery had decreed a specific execution of the contract made between S. Dorsey and J. Wells, against E. H. Dorsey, the Infant heir, allowing him a certain time after lie arrived of age,, to show cause why the decree should, Slot be valid, and he not having within, that time availed himself of that provision, he can in an ejectment set aside the proceedings; or in other words, whether the general court can reverse a decree of the court of chancery, and declare pull a title established hy its decree, while it re» snainsin full force unreversed?
    £. Whether the legislature were competent to taka away the actual vested rights and property of one private Individual, and give them to another private individual, who antecedently liad no legal or equitable title to or in» terest therein?
    1, It is the peculiar province of the court of chancery ía determine in what cases there should be specific executions of contracts; and although it should determine ever so often, that a contract made by him who holds land in tail should he specifically'executed against the heir in tail, unless such decree has been set aside.in the court of chancery, by a review, or reversed by the court of appeals, pa. áii appeal, it remains bindiug on the parties, and must be respected By every court of law. In this case, E. H. Dorsey neglected td avail himself of the provision in the decrete, that is, within six months to show cause why tlife decree ought not to have been made, or ought tobe set aside. He is now absolutely concluded thereby; or át áli events, a court of law cannot set aside this decree of the court of chancery. In Moses vs. Macferlan, 2 Burr. 1009, Lord Mansfield declared; that “till a judgment is set aside, of reversed, it is conclusive; as to the subject- matter of it; to all intents and purposes. There the ground upon which, the action proceeded would hiive been no defence in the court of conscience; but the allegation in, this cáse, that the lands were entailed, would have been a defence in the court of chancery, provided that court could not specifically enforce those contracts, and the decree gave E¿ It. Dorsey six months after he arrived to full age to show that or any other fact which would set aside the decree, lie referred to Evan's Essays, 63 to 70. Peake's Evidence, 50 to 52, (and notes.) Meadows vs. Dutchess of Kingston, Ambler, 762. Clews vs. Bathurst, 2 Stra. 930. All which establishes iftcontesfably, that the decree of the court of chancery cannot be questioned or set aside in this» Incidental manner. It is riot to be inquired whether the chancellor was in possession Of all the facts; or upon whdt .grounds lie decreed. A decree of his court, until reversed, isas binding as the judgment of any other cotfrt. Its! jurisdiction is as unlimited as that of the general court; and in this case he was acting upon a subject completely within his jurisdiction. Since Coke's time no prohibition's have issued out of the court of Ling’s Bendito chancery. Ia the case from Raytnónd no prohibition issued, and it does, mot appear that the prohibition would have issued. In England infants are bo (Hid, unless they show cause within a certain time after they come of age. It is only necessa» iw to consider what the law was as established by the act of November 1773, ch. 7. While the decree and conveyance remained unrevoked, the title must he out of Dorsey. This court has no rigid to determine whether the court of chancery had jurisdiction. It ia a subject of equity, not of common law" jurisdiction. The act of assembly does not confine the chancellor to foe simple estates. When the subject is brought before the chancellor, who is to tiecicle whether the estáte was held in fee or tail, he may send it to the courts of common law, but he is not obliged. It appeared that the chancellor only had the power to determine whether a conveyance ought to be made. If the chancellor decided erroneously, a tribunal other than this must reverse his decree.
    2. The act of assembly is an absolute nullity. A legislative body has no more right to do a judicial act, tharf a court of justice has to do a legislative act; each are equally improper, each equally void. No legislature has a right to interfere with, change, alter or take away, private property, except where the public interest demands it, nor then without making a Compensation to the person from whom it is taken. 1 Blk. Com. 139. It would appear by the statement, that C. Dorsey annexed to his devise a proviso,-which proviso the legislature, in the plenitude of their power, have annulled; and have declared, that though the testator’s intent vvas to devise over the estate on a contingency, that such intention should not prevail; that the limitations Over should be void. Such an act passed by a legislature body is not operative, it is an áct of power, not of right. A law, not intended to influence the community in general, but to rob the next devisee, (who was an infant at the time the law passed, and incapable of giving his consent to it,) of so much property, must be a nullity.
    
      Shaaff,
    
    in reply, cited 2 Com. Dig. 122, to show, that if tenant in tail contracts for sale, receives the purchase money, and dies without fine or recovery, the agreement shall not be carried into execution against the issue in tail, or remainder-man claimingper jorrñam doni, even though tenant in tail had been decreed to perform. It will not be denied, that unless issue in tail had land in.fee from his ancestor, he is not bound by the contract of that ancestor. With respect to the act of assembly, it is expressly declared therein that the devisees over had assented.
    
      Cufia adv. vuH.
    
    Before the next term, Goldsborough Ch. J. died, and no decision was given. The case was depending in the general court when that court was abolished, and was therefore transferred to the county court of Anne-Arundel, by the act of 1805 ch. 65.
    
      At April term 1807, the cause was argued iff that coiínty tourt,
    before Cíiase, Ch. 3. and ÍIahwo ód, A. 3.
    by Mdgdy, and Johnson, (Attorney General,) for the plaintiff below, and Marlin, for the defendant.
    The arguments of the first and last gentlemen Were similar to those used before the late general court.'
    Johnson, (Attorney General,) for the Plaintiff.
    The only question in this case is, Shall an heir in tail be barred b) a deed executed by his guardian, grounded on a decree of the court of chancery, which decree is2 founded on an untrue allegation stated in the bill, and admitted by the guardian’s answer, that the ancestor was seized in fee? íf an heir so circumstanced can be barred, the plaintiff' must fail; if the reverse, he must succeed. The authorities produced most conclusively prove, that if it had appeared in the hill in chancery that the defendant, (the now lessor of the plaintiff,) was seized in tail, and not in fee, the decree could never have been obtained, and the conveyance would never have been executed. Nothing is more clear, than that the issue in tail is not bound to carry into execution the contract of the ancestor. The estate tail, before the áct of assembly, (June 1773, ch. 1, and November 1782, ch. 23,) could only be barred by fine and recovery; since the act of assembly it may be barred by deed. The defendant, if he claims Under John Wells, ami if he succeeds, avails himself of a decree which ought never to have been obtained, and which never could haves existed if the truth had been disclosed. He protects himself under the suggeslio falsi of the bill, and the suppressio veri of the answer. He protects himself by a compound fraud, practised against the lessor of the plaintiff) at a time when he was but seven years of age. It is contended, on two grounds, that'the plaintiff is not precluded from recovery.
    
      1. That the decree exceeded the jurisdiction of the court, and what was done there was córmn non judíce, and void.
    2. That the decree was obtained by fraud, and therefore that, and the deed grounded upon it, are' Void.
    
    1. The court of chancery possesses two kinds of.jurisdiction- — 'The one ordinary, agreeably to the common law, secundum legem, et consue tudinem anglise. The other extraordinary, according' to the rule of equity, secundum e.yuum, et bonmn. 4 Inst. 79. The ordinary power ef thé coiirt appears coeval with the law; the extraordinary, iá compandor),- of recent date; Ho traces of the exercise of the latter jurisdiction is to be found before the reign of Henry Vi, (which commenced in 1432;) since that period; to the present date; owing to the narrow contracted rules of tlie courts of common law; and various other causes; unnecessary to be detailed, its powers have been immensely increased by the decision óf thosé vídio presided therein, and by various acts of the legislature iri England, and this country. Near fivo hundred years after the extraordinary power of the court was Recognized, its authority to control a judgment obtained at law, although evidently grounded On fraud, was contested. The Opposition to tlie power of the court failed, and the authority lias since been invariably exercised. The court of equity, (for I shall distinguish the extraordinary power of the court by that name,) is bo court of record,-, It can bind but the person only, and neither the estate of the defendant in his lands, or his personal property. 4 Inst. 84. The late general court possessed the same controling influence over inferior establishments and jurisdictions that the court of Ring’s Bench exercised in England, “which keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below.” 3 Blk. Com. 42. All the authority possessed by the general court is transferred to the court before whom this cause depends. If then the court of equity possessed no jurisdiction over the thing,- but could only act against the person to compel him to do what the decree commanded, how cart a deed, executed by the guardian of a minor, pass the legal estate of the minor, unless that estate was such as could be decreed tobe conveyed consistent with the acts of assembly enlarging the jurisdiction of the court? All the jurisdiction possessed by tlie court to decree a specific performance against infants, to be carried into effect by the deed of the guardian, is founded on the acts of November session 1773, ch. 7, and October 1778, ch. 22. Before those acts, and at present in England, the decrees against infants are, that they shuli convey when of age, unless within a given time cause is shown to the contrary. There the conveyance must be by a person having the legal estate. The act of 1773, ch. 7, is most evidently confined to fee simple estates; tlie language is, ijjat persons under age, “seized or possessed of lands,” &c. f‘pf bound by an agreement to convey, made by some person or persons, having right or title to make such agreement, and therefore subject or liable to a decree for a conveyance, or a suit for a specific performance.” Tf the position be correct that the heir in tail is. not bound, by the agreement of the ancestor, to convey, and that the will of Caleb Dorsey, in the case stated, gives only an entail, then it clearly follows that the act of assembly has no effect on the case. This act changes the proceeding from what it is in England, and was before in this state. The decree is for the conveyance to be made during the minority. The time is given to, vacate the deed, or rather to show cause why it ought nof to have been made. Under the act of 1773, ch. 7, a practice must have prevailed of obtaining the deed from the gqardip and not the minor. Those conveyances, although grounded on the decree, which had the supposed power vested by the act for its foundation, were supposed defective, to reinedy pluck the act of 1778, ch. 22, passed. Under this jav the deed is to be made by the guardian, and the former- deeds are confirmed. Under this law, “the deed of the guardian pf such person,” &c, “shall be valid; that is, of stick to, whom lands had so descended are to be bound by the conjraci to convey; in other words, the heir in fee simple. If the act makes valid the deed of the guardian of such person, it leaves the deed of the guardian of other persons un - affected. As to them it is the same as if the law had never passed. But the act pi 1778 proves another thing; that the conveyances made under decrees do not pass the legal estate, unless the decrees, and thg conveyances in pursuance thereof, correspond with the Jaw, under which they are made; where they depart from them even in form, nothing passes. From what has been said there could ba no question, if the facts existing in the cause had been (lis* closed; that is, if the tenancy in tail had appeared, the decree could not have been made; but as the facts did not appear, and as the decree has taken place, can its effects be coniroled by this court? Tt is for tiie interest of society there should be an end of law suits; and therefore, where a judgment or decree is made by a court of competent jurisdiction, there the merits of that judgment or ite cree can never be inquired into by an original suit. If there is an appeal allowed from such decision, you must resort to it; if there is not, you are concluded by the decision in the first instance. The reverse of the principle is equally clear, that a judgment or decree of a' court, not ligving competent jurisdiction, concludes nothing; it is of itself a nullity. Suppose, for instance, before the act of descents took effect, a man died seized in fee, leaving three children, A, B and C. The eldest, A, left the |state, and was, supposed dead, intestate, leaving B his heir, who sold-to D, gave, a, bond of conveyance,, received the money, and died. A bill is filed for the conveyance, alleging. B was seized iq fee. The answer admits it, and the decree passes. Afterwards a will is discovered, by which the [and, previous to the decree, was deyised in fee to Cs against whom the decree was bad- Surely the decree,, grounded on the supposed interest of B, and the corresponding obligation to convey, could not operate, when it turned out that B. bad no estate, and C claimed independent of him. The samp applies to the tenant in tail, hq claims.through, but per fonnam doni. The decree ip this case doth pdf specify tfie effect of the conveyapce, but in general decrees, and declares thereupon the, grantee shall hftve all the estate, which was. ip Samuel Dorsey, (for instancy,) and which from Imn descended, to, or devolved on,, the defendant. The apt of assembly, it is true, declares the deed to haye the same effect, as if executed by a person of full age; but yef it relates to deeds executed by minors in fye, who must have inherited from the ancestor. The jurisdiction of courts are circumscribed, 1. With respect, to place. 2, With respect to persons. 3. Wjfh respect tp the subject matter of the jurisdiction. We have clearly seen that the subject tnafter of the court of equity decreeing conveyances; is composed of fee simple, estates; that, they have no power or control oyey estates tail before or since the. acts of assembly. But it.pipy be contended, that as the court possesses the pp;yyr tp decree a conveyance, and having done so, if cannot.be defeated by any thing, now appearing, that the cpse was siich p, if knowp, would, haye excluded thy jurisdiction. The case of the Marshalsea, 10 Coke, 69, 76, proves that tire officer who exeif precgpt, jssviipg on- a judgment of -a cqurf of ppm-potent jurisdiction, is liable as a trespasser. There a suit had been brought against one Thomas Owingsted, stating ¡on the face of the declaration that he was within the jurisdiction of the court; he appeared- — did not plead to the jurisdiction — a judgment is obtained against him; after an execution returned fíon est, process issued against his bail, who was taken, and for which the guit was brought; the Marsh.alsea to the ¡jetion pleade.d the judgment,' &c- as a justification; the plaintiff replied, thaj: neither himself, nor Owingsted, were within the jurisdiction .of the court; the defendant demurred. Jn this case these principles are established — when a court has jurisdiction of the cause, and proceeds inverso online, or erroneously, ther.e no action will lie against the party who ¡sues, or the officer who executes the process; but where the court has no jurisdiction, the whole' is ccram non judice, and potions jvill lie. The same principles are recognized in Perkins vs. Proctor, 2 Wilson, 382, where the defendant, the assignee of a bank» yupt, who as such had obtained a judgment in ejectment, is made a trespasser, because the person declared to b.e a bankrupt was afterwards declared not tp be liable to the bankrupt laws. It is said, in giving the opinion of the court, that .^jurisdiction concerning bankrupts is confined to. particular- persons and cases, and the court of chancery acts herein, solely upon the application of the party petitioning, at whose peril the commission issues, and if he sues it ou,t upon fylse suggestion, the law gives a remedy against him whose person.or property is thereby invaded.” This case, as well as the funner, distinguishes between irregular- judgments, judgmenfs reversed, and those given wfitlmut jurisdiction — Ahe first arid last jtre void, in these cases nothing appeared in the original proceedings excluding the jurisdiction of the courts; the disclosure is made in the one by the pleadings, and in the, other by the evidence in subsequent suits. The case at bar cannot be distinguished from then). It is true the defect of jurisdiction arose as to persons, but t|ie same principles exist, and are recognised, where the subject matter is not within the jurisdiction of the court. If the court has no jurisdiction over the case, or the subject matter, its proceedings are 'void; the judgment stands for nothing, fiut how strong igthe reason why they should be void, when he who claims |he aid of them by a false suggestion, induced the. belief of jurisdiction, f ‘The law gives,” in the language of the court in fVilson, <la remedy to him whose property is invaded,” In Moses vs. Macferlan, 2 Burr. 1009, although the court got round an original judgment, yet before the decision in a subsequent case can be controled by a former judgment, it must appear to be the judgment of a court of competent jurisdiction. There the court would not be bound by the judgment of a court even of competent jurisdiction, because the same question did not arise. Here the question which was in the court of equity, and the oné ' under consideration, are totally variant; there is no similitude between them. There has been a cause in the supreme court of the United States, which clearly establishes, the authority of the court — that it is not controled by the decree — :It is the case of Clarke vs. Young, 1 Cranch, 189, by which it appears (hat Clarke had bought from Young, & Co. á quantity of salt,'and assigned tp them a promissory note as a conditional payment. The drawer of the note proved insolvent, and a suit was brought against the endorser, Clarke. The plaintifib failed. They then brought a'suit for the salt, and the former judgment on the note was pleaded as a bar, that being the same cause. The plaintiffs obtained a judgment, which was affirmed in the supreme’court. The chief justice, in giving the opinion of the supreme court, remarks — ¡‘it is perfectly clear, that in this case the same question was not tried in both causes.” If this is to be the criterion, then I may declare, that this court is not concluded by the other, because it most evidently appears that the same question never was before both courts. But in the case before the supreme court, the shades'of difference must have .been slight indeed; for in thfe first case the plaintiffs ought to have succeeded, unless by delay or negligence in proceeding against the drawer; they made the debt their own; and if they did so, then tlie assignment of the note, with such conduct, amounted to a payment. But here nothing is more evident than that the questions are totally different. The decision of the supreme court of the United States defeated the effect of a judgment rendered by a court of competent jurisdiction. It confirmed the judgment of a court of coordinate jurisdiction with'that A'hich tried the first cause. The one, in effect, determined the assignment to be a payment, the other, fhat it ^ras not; and that during the continuance of the first Judgment. The supreme court considered the sameness «of the question the criterion whether a bar or not. Here we deny the jurisdiction, and here the questions are liot the same.
    2. The decree was obtained by fraud, and therefore the ■decree, and the deed grounded thereon* are void. The chancery, cancdlaria, so termed a canceliando, from cancelling the King’s letters pateut, when granted contrary to law, which is the highest point of its jurisdiction. 4 Inst. 89. 3 Blk. Com. 47. The general court possessed the same power when the patents were obtained by fraud. If then, to make patents void is the highest exercise of authority, and this court possesses that -power, it surely has the right of determining a deed to be void, which deed for its validity rests on a decree obtained by fraud* Fraud will invalidate in a court of law as well as in h court of equity. Bright vs. Eynon, 1 Burr. 390. Fermor's case, 3 Coke, 77, 2 Morg. Ess. 60. No case exists, or can exist, in which a court of law has ordered a patent to be cancelled. This power the court of equity alone possesses. Rut the court of law can do, and has done, what in effect is the same, adjudged, if it was obtained by fraud, nothing passes. In Boreing vs. Singery, 4 Harr. & M‘Hen. 404, the general court determined, that if the jury were of opinion that the patent obtained by the defendant was fraudulently procured, that then nothing passed by it, and the junior grant to the plaintiff entitled him to the land — most explicitly, by this decision, recognizing the right of adjudging patents void, aud freeing the parties from the necessity of resorting to the court of chancery. In Bull vs. Sheredine, 1 Harr. & Johns. 410, the general court also determined, if the deed executed by the sheriff of Harford county, under a feerifadas, was made through fraud, that it passed nothing. Surely then, if in the most transcendent cases the court has the power to adjudge the instruments void, they are not precluded in inferior instances, and more especially Where the proceedings, so to be adjudged void, arc not matters of record. It can scarcely be necessary to proceed to an argument, that the decree in question was obtained by fraud. A mere representation of the facts stamps the whole proceedings with the most conclusive marks of fraud. The chancellor is induced to believe 8a-■mud Dorsey had a;i estate in isa* The complainant makes that allegation; the guardian admits it. The complainant obtains k deed for land, it was impossible for'him to procure blit by a false Suggestion — -The guardian receives a Sftm of money, whiiih could not have been received but by an Untrue admission. — Both the badges of fraud, suggestio falsi, and suppressio veri, are used; In the examination: of tlifi Stibjcct the court ivill perceive the case is argued as' if the defendant claimed under John Wells, stud therefore must stand and is liable to the same judgment he would have received. But his claiih does not appear in' the case stated. He, from any thing in the causé, is a there stranger. He cannot avail himself of the decíée, and claim the benefit of that, and the deed by Estoppel. He is not a party or privy. Since the year 176G, lands must be conveyed in a certain peculiar maniie1'; unless that is pursued nothing can pass The acts of assembly since enacted, have in certain special cases authorised other persons than the legal holders to execute deeds for ¡andera which such persons had no interest. But it follows, a's the prohibition i-o general, and the permission special, the land to be conveyed must be specially circumstanced as the law prescribes. We have seen that this land was not so circumstanced,, and therefore we conteud nothing passed.
    
      
      
         In the Upper House, on tile 20th of December 17Z3, on the passage of the bill, entitled, “An act for the relief »f Samuel, Dorsey, of Anne Arundel county,” Daniel Dulany, esquire, with the leave of the house, desired that his protest might be entered, which follows, viz. DlSSIiSTIJSJiT.
      1st. Because the owner of property haying a legal light to givt'a lias a legal right to dispose of it. upon what terms, (consistent with the policy of the l?rw,) he thinks proper, ami therefore, whatever was the motive of the testator, Caleb Dtyrsey, in devising- a const, derable part of his estate tp his son Samuel, upon the condition expressed in his will, a posterior law, professedly annulling the con"dilion, which the testator was indubitably authorised by the prior general law to annex to the devise, will, by a restrospective operation, rescind an act incident to the right of ownership.
      2dly. Because by the liberal devise to Samuel Dorsey, it appears, that the testator was very far from being destitute of (he feeling of parental affection, and if he had, not even made any. provision for Iris son Samuel in his will, which 1 conceive would l.ave been a case of greater compassion, than that which the petition represented, it. would be a níost extraordinary and unprecedented proceeding to enact a particular law for the very purpose of controling the will of the owner of property, which under- a prior-general legal establishment he had an incontestable authority tp. dispose of, as he thought proper. .
      3dly. Because the motive of the testator, in annexing the condition in order to prevent his son’s roan-yin®- the woman described in his will, is not known, and if known, (supposing the effect of a will ought to depend upon the propriety of the testator’s motive,) might appear to hare been proper. In this state of uncertainty, the possibility of a proper, just motive, (and such may be imagined,) affords, I conceive, a sufficient reason for not controling- the Operation of the general established law, by which the owner of property is authorised to dispose of it by his last will, not being in* consistent with the policy of the law, in such manner as he thinks fit,
      4thly. Because, as the motive for annexing the condition to the devise to Samuel Dorsey is not known, the principle of this act maybe, I conceive, inferred to have been, that the will of a parent ought tq be controlen by a particular subsequent legislative act, if the majority of the legislators, in their respective branches, sus. •pect the motive of the testator to have been such, as they imagina would not have influenced their conduct in a similar situation, and that too supposed xipon conjecture only; a principie which, 1 conceiye, if maintained with consistency by future legislators, may be productive of great inconvenience.
      othly. Because the reasoning from the circumstance that devisees in the will of Caleb Dorsey hayo joined in the petition fen the act of assembly, is, I conceive, of little weight, inasmuch, us ¡í¡|>£»i a breach of tka condition annexed to the devise to Samuti 
        
        Dorsey, the immediate limitation is to Edward Dorsey, who is an infant, of the'real estate in tail, and of the personal estate ahsO'lutely; for the further limitation of the personal estate upon the death 'of Edward Dorsey, the infant, without heirs of his body, is I conceive, void; and the other devisees, in respect of the limitation over to them of the real estate, upon the death of Edward Dorsey without issue, may transfer their interest to Samuel, without the aid of the legislature; and Edward Dorsey, when of age, would also have it in his power to relinquish the benefit of the condition in favour of Samuel. But the act of assembly, barring the limitation to Edward, deprives tile infant of the provision which the ge- • pera} law Jiatll established for the protection of infancy.
      
        X>. DciAKr,
    
   Chase, Ch. J.

delivered the following opinion of the court. In considering this case, and the objection to the recovery of the plaintiff, the court have, as first in order of time, resorted to the will of Caleb Dorsey, under which the plaintiff derives his title to the land in question, to determine the quality of the estate acquired by Samuel Dorsey, the father of the lessor of the plaintiff, in the land, under the will, and are of opinion, that an estate in tail was devised to Samuel Dorsey, and that the lessor of the plaintiff) as heir or issue in tail, was not compellable to fulfil or execute the contract for the sale of the land made by his father to John Wells.

The court are also of opinion, that the court of chancery had no authority or jurisdiction to decree a specific execution of the contract against the lessor of the plaintiff, as heir or issue in tail of Iris father' Samuel Dorsey. The act of assembly for the amendment of the law, which passed in 1773, (November session,) extending oftly to cases in which the heir was bound to fulfil the contract of his anoe&tor; and the heir in tail claiming the land pcr formmi do* ni, and not deriving title under his father, is not bound to convey the land in fulfilment of the contract of iiis father.

It is objected that the decree of the court of chancery, set forth in this case, and the conveyance made pursuant thereto, will conclude the plaintiff, and prevent his recovery*

The bill in chancery filed by John Wells against Margaret Dorsey and Edward Hill Dorsey, makes a false sugges» tion in stating that Samuel Dorsey was seized in fee of the land in question; and Margaret Dorsey¡ by admitting in her answer the said statement, suppressed the truth. It is not material whether the suggestion and admission were made for want , of due consideration of the will of Caleb Dorsey, or for the purpose of giving the chancellor jurisdiction in a case, which was not properly cognizable by the court of chancery. The decree is founded on the bill and answer. The question, whether SamUel Dorsey took a fee simple or fee tail under and in virtue of the will of Caleb Dorsey, was not decided by the chancellor. The will of Caleb Dorsey was not even referred to, or brought into the view of the chancellor, by the proceedings. The question, whether the heir in tail was bound to convey the land in completion of the contract of his father, was never considered or decided by the chancellor. The said questions never having been directly decided by the chancellor, the same not having been the subjects of his consideration, nor could arise on the said case, the court are of opinion, that the plaintiff is not concluded by the decree, nor can the decree, and conveyance made pursuant thereto, operate to divest the right and interest of the lessor of the plaintiff in the land, as heir in tail, under the will of Caleb Dorsey.

To prevent the recovery of the plaintiff in this case, it is also objected, that the act for the relief of Samuel Dorsey is an absolute nullity.

The above act of assembly makes void the condition or restrictive clause annexed to the devise to Samuel Dorsey, contained in the will of Caleb Dorsey, and is founded on the petition of Samuel Dorsey, and the assent of Edward Dorsey, the next devisee over, who was of the age of fourteen years, and on the assent of all the persons then interested under the ryill of Caleb Dorsey, except Willimn Goodwin, and Milcah his wife, who did not object to thé passage of the said act

It is riót stated in the case that Edward Dorsey, after he attained the age of twenty-one years, ever withdrew his consent to the said act; or in any manner objected thereto.

It is stated in the act of assembly, that the marriage of SamUel Dorsey, with the person described in the will of Caleb Dorsey, Was no disparagement to Samuel Dorsey.

At the time the act of assembly passed, the power arid jurisdiction of the'genei'ál assembly of Maryland, over alt subjects of legislation within the limits of Maryland, were as great and transceiidant, as the power and jurisdiction of the parliament of England; within the scope of their authority. And Sir 'Edward Coke informs Us, “the power and jurisdiction of parliament is so transc'endaílí and absolute, that it cannot be confined, either for causes or persons; within any bounds.” This passage is cited and approved by Sir William Blaékstone, who adds — ‘“the parliament hath sovereign and Uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding, of' laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military', maritime, or criminal.” He also declares* that “all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.”

The general assembly weve satisfied that the facts and circumstances disclosed in the act as the foundation of it. were sufficient to warrant the interposition of their’ trimscendant and extraordinary jurisdiction; and the acquiescence of Edward Dorsey, and' all persons concerned or interested under the will of Caleb Dorsey, since thepassage of the act, exempt the motives of 'the general assembly from censure or reprehension.

The court are of opinion, that the act of assembly is not 'void, but effectual and operative to annul the condition of restrictive clause subjoined to the devise to Samuel Dorsey in the will of Caleb Dorsey, and do order that judgment be entered' for the plaintiff for possession and costs of Suit.

To reverse that judgment the defendant brought the present writ of error.

The cause was argued in this court in December 18JO,

before Polk, Buchanan, Nicholson, and Earle, J. by

Martin, W. Dorsey, T. Buchanan, and Harper, for the Plaintiff in error;

and by

Ilidgely, and Johnson (Attorney General,) for the Defen» slant in error.

The arguments of the Counsel were nearly the same as those before stated. It was contended, on the part of the plaintiff in error, by

T. Buchanan.

1, That the court of chancery had original and exclusive jurisdiction to compel the specific execution of contracts against persons of full age, and that by positive statutory provisions the same power was given against infants, under certain modifications. He referred to the acts of November 1773, ch. 7, s. 11, and October 1778, ch. 22.

2. That being a court of competent jurisdiction its docrees were conclusive on the subject matter of them, on all other jurisdictions, and could not be collaterally revised or annulled by them. He cited Evans's Ess. 62. Marriott vs. Hampton, 7 T. R. 265. Philips vs. Hunter, 2 H. Blk. Rep. 402. Hitchen vs. Campbell, 2 W. Blk. Rep. 827; and Peake's Evid. 46 to 52.

3. That there was nothing in the facts disclosed which could invalidate the decree, and consequent conveyance of the land. That if there wa=, it must be on the ground of fraud. That nothing short of fraud could vitiate the proceedings. But that fraud could not be inferred or pry * sumed by the court on a case stated, or special verdict, it' must be expressly found. H® referred to Chancellor of Oxford's case, 10 Coke, 56. Riddler vs. Punter, Cro. Eliz. 292; and Crisp vs. Pratt, Cro. Car. 550.

Curia adv. vult.

Nicholson, J.

at tills term delivered the opinion of the court, affirming the judgment of the, county court, in which Earle, J. concurred.

Buchanan, J.

dissented: and it was said by the court that Polk, J, (since dead.) liad also dissented,

JUDGMENT ATFIRMEJJo  