
    Pollard v. Cartwright, Brand, and Others.
    Wednesday, March 15, 1808.
    Sale of Land.- — The vendor ot a tract of land having previously incumbered it with a mortgage, of ■which the vendee had no notice; the innocent security in the bond for the purchase money is not liable to make good the loss of a subsequent purchaser evicted by a decree to foreclose the mortgage.
    On an appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced in October, 1802.
    The only parties before the Supreme Court of Appeals, were Pollard and Brand; as between whom- the sole question was, whether Brand, who was the innocent secu-’ rity of Richard Burnley, for the purchase of a tract of land made by him of Cartwright, which he (Cartwright) had previously mortgaged to one Doncastle, but of which mortgage Burnley had no notice, could be made liable to Pollard, a subsequent and remote purchaser from Burnley, of the same land; it having been sold under a decree to foreclose the mortgage, while Pollard was in possession of it.
    In the Court of Chancery, there were several other parties defendants, against whom, according to their respective interests and liability, the Chancellor decreed in favour of Pollard; but dismissed the bill as to Brand, upon the coming in of his answer; from which decree Pollard appealed to this Court.
    Warden, for the appellant, took several exceptions to the proceedings'in Chancery, which are particularly noticed in the opinion of Judge Tucker; and endeavoured to shew that Burnley had no right to complain, because, although the land was subject to a prior incumbrance, yet he 117 *received more for it than he had agreed to give to Cartwright.
    Call and Randolph, for the appellee, Brand, contended, that the bond in which he was surety, was not binding, either upon him or Burnley, because it was given for the purchase of a tract of land to which Cartwright, the vendor, had no right, until a mortgage to Doncastle, the former proprietor, should be satisfied.
    Suppose Cartwright himself were before the Court, claiming the benefit of the bond: would this Court decree against Brand? Surely not. It would be said that Cartwright had been guilty of a deliberate fraud in selling the land to Burnley, without giving him notice of the existence of a mortgage which absorbed the whole land. If, then, Cartwright could not recover against Brand, Pollard, who claims of Brand as the debtor of Cartwright, can stand in no better situation.
   Monday, March 21. The Judges delivered their opinions.

JUDGE TUCKER.

The original parties to this suit, in Chancery, were Richard Byrd and Robert Pollard, complainants, against Thomas Cartwright, an absent defendant, and William Gooseley, executor of Allen Jones, James Davis, — Burnish and Elizabeth Swann, Burnish, his wife, admin-istratrix of Richard Burnley deceased (two other absent defendants,) Joseph Brand, and Mary Bell Burnley, daughter and heir of Richard Burnley, deceased, an infant, since married to Edmund Brown, as debtors of Thomas Cartwright, and garnishees under the act of assembly concerning absent debtors. The bill states a variety of matter, which I deem it unnecessary to particularize. A decree was obtained against Cartwright, under the act of assembly, and. against James Davis, as a garnishee for' him; Gooseley having answered and denied having any effects in his hands, and the accounts rendered by *him having been referred to a commissioner, whose report was favourable to him, the bill was dismissed as to him. It abated as to Burnish the husband of the administratrix, by his death; a decree was made against Elizabeth S. Burnish, the administratrix of Ricn-ard Burnley, under the act of assembly concerning absent defendants; but no person appears to have been summoned as a garnishee for her; nor is there any suggestion that she had any effects in the hands of any person in this state, nor are the securities for her administration made parties to the suit. Edmund Brown answered In behalf of his wife, the daughter and heir of Burn-ley, “denying every allegation in the bill, asserting that Richard Burnley had complied with all his engagements, respecting the lands in question, and denying that he had any real assets in his possession' of the late Richard Burnley, deceased, either by descent or devise.” To this answer there was a general replication, without any exception taken thereto, nor was there any further process to compel his wife Mary to put in her separate answer. The cause was set for hearing on the motion of the plaintiffs, and coming on to be heard on the 6th day of June, 1800, was no further prosecuted by the plaintiff, Richard Byrd, and was taken for confessed, against the absent defendants, and Joseph Brand, who was in contempt for not answering, and was heard on the bill, answers of the other defendants, and “exhibits, among which were the proceedings in two other causes;” in one of which there was a decree, September 22, 1792, and in the other, a decree passed 29th of May, 1800. In neither of which cases does it appear that an appeal was prayed, or granted. The Chancellor in the case now before us, made a decree to the effect before stated, as to all the defendants, except Brown and wife, as to whom the bill was dismissed; and except Joseph Brand, who was allowed till the next term after service of a copy of the decree, to shew cause against it. He appeared accordingly at the next term, and for reasons appearing to the Court, the decree as to him was set aside, and thereupon he put in *his answer. In this, he admits, that he was security to a bond given by Richard Burnley to Thomas Cartwright, on account of the purchase of a tract of land called Doncastle’s. That it hath since been discovered that Cartwright had previously mortgaged the lands to Thomas Doncastle, so that the consideration for which the bond was given had altogether failed; and therefore tha't neither Burnley nor himself ought to be compelled to pay the bond; insists he is an innocent security to the bond, and knows of no way of reimbursing himself: and denies that he is indebted to Cartwright on any other account. It appears from the exhibits that the mortgage had actually been foreclosed, and the land sold.

On the 30th of September, 1802, the Chancellor setting aside so much of his former decree as related to Joseph Brand, dismissed the bill as to him; and also made some alteration in the decree as to James Davis, allowing him his costs. The next day he set aside that decree, and finally dismissed the bill as to Brand: “From which decree the plaintiff prayed an appeal.” The only parties who have appeared in this Court, are the appellant, Robert Pollard, and the appellee, Joseph Brand.

From this view of the case, which I found no small difficulty in comprehending at first, it will appear that the records in the two former suits are no otherwise before this Court, than as exhibits in the present suit. With the correctness and propriety of the several decrees therein pronounced, we have no more to do, than if they had been pronounced in another state, or a century ago. Consequently the arguments of the appellant’s counsel predicated upon the pendency of those suits, are wholly irrelevant to the present cause.

Of the decree against Cartwright, in this cause, there is no ground of complaint on the part of the appellant: he has obtained all he asked for against that defendant. So has he against James Davis, and against Elizabeth S. Burnish, administratrix of Richard Burnley, deceased. But we are told by the counsel the decree is erroneous in *not providing any expedient for the settlement of the account of that defendant as administratrix of her first husband R. Burnley. Was it the duty of the Court, or of the party, or his counsel, to point out the means by which an absent defendant might be compelled to do what the interest of the plaintiff required? Is the Court bound to inquire for proper parties, who might have money or effects, or the accounts ox an absent defendant in their hands, without the aid or request of the complainant or his counsel? If such be the duty of a Court, what need is there of counsel? Another error which the appellant’s counsel suggests, is, the dismission of the bill as to Gooseley. The decree as to that defendant, if not perfectly correct, is more favourable to the appellant than perhaps it ought to have been. A third error suggested is the dismission of a bill as to Mary Brown, the daughter of R. Burnley, on the answer of her husband, which it is said is in no respect a proper answer. Why then was it not excepted to? Why was there not process of contempt against the wife, to compel her to put in a separate answer? Why was the cause set for trial as to these defendants as well as the others, on the motion of the plaintiff? The answer of the husband in behalf of his wife not being excepted to, was admitted as her answer. The general replication put in issue the facts therein alleged, but did not controvert the propriety of the answer, as the answer of the wife. No evidence was adduced to disprove a title of it. It stood then upon the footing of any other answer, being put in and sworn to by a real defendant in the cause, and as such was entitled to credit, not being disproved, or even contradicted. A further ground of complaint with the appellant’s counsel was, that the decree hath exonerated Joseph Brand, who was an innocent security for a purchaser, without notice, of lands, previously mortgaged by the seller; which mortgage hath since been actually foreclosed, and the vendee of the purchaser evicted. Neither the security nor the purchaser himself, can in such a case be made liable to the seller, because his '"'concealment of the mortgage, to which he was not only privy, but was actually the maker of it, was such a fraud in him, as would have subjected him to make restitution, if the money had been paid; and consequently afforded a sufficient ground to I>rotect the security against the payment, And although it has been urged that Burnley, the purchaser, sold the lands again, and received the purchase money, so that he sustained no loss by the mortgage, yet this does not alter the case, for he is still liable to recompence his vendee who has been evicted, and therefore shall not be compelled to pay his vendor, who sold under such fraudulent circumstances. Nor shall his security be libale to pay the money at the suit of one who may have an equity against such a fraudulent seller, because, where there is equal equity on both sides, melior est conditio defendenlis. Nor ought the security to be liable to Pollard for any equity which he might have against Burn-ley, (as I understood the counsel for Pollard to contend,) for Brand was not the debtor of Burnley, but the debtor of Cartwright, the fraudulent vendor to Burnley. Upon these grounds I am of opinion, that the decree ought to be affirmed. Leaving it, however, to the appellant to pursue his remedy against Cartwright, and against the absent administratrix of Burnley, by adding other parties in whose hands he may find money or effects, belonging to either of them, as garnishees.

JUDGE ROANE,

considered this a very plain case, and that the decree ought to be affirmed. If the plaintiff thought proper to amend his bill and pursue other parties, he could see no objection to such a course.

JUDGE FLEMING.

When this voluminous record, and seemingly complicated case, comes to be inspected, it is reduced into a very narrow compass, and the present contest seems to be between Robert Pollard and Joseph *Brand, only; the latter is not now, nor never was, otherwise interested, or concerned in the business, than as a security for Richard Burnley to Thomas Cartwright, in a bond executed thirty-two years ago, and given for the purchase money of a tract of land called Doncastle’s Tavern, to which he could convey to the purchaser no title, having previously mortgaged the land to Thomas Doncastle, to secure the payment of 5001. which circumstance was concealed from Burnley, and did not come to his knowledge for several years after the transaction ; which rendered the bond, I conceive, void in equity; and, at least, exonerated the security, who was no ways concerned in interest, from his responsibility.

And let us see what are the appellant’s pretensions to charge the appellee Brand. Burn-ley, the first purchaser from Cartwright, ■sold his right to Adam Byrd, who agreed •to give him, in part payment, a tract of land called Cochran Town, purchased of one Hill; but for which he had no deed of conveyance: Burnley sold to Butler and Butler to Pollard, after Hill had conveyed to Byrd; but no other deed had ever passed between the parties, of which Pollard had full notice, and took advice of counsel on the subject, before he made his improvident purchase of Butler, as he confesses in his answer to the bill of Richard Byrd. Thomas Don-castle (to whom Cartwright had mortgaged the land called Doncastle’s, to secure the payment of 5001. as before noticed) being dead, the executors of his surviving executor brought a bill in the High Court of Chancery to foreclose the equity of redemption of the mortgaged premises, which was sold under a decree of the said Court, in April, 1793, to satisfy the debt due to Don-castle. Upon which Richard Byrd, who is heir of Adam Byrd, deceased, and who was a party complainant with Robert Pollard in the suit now before us, brought his bill against Pollard, to be indemnified out of Cochran Town, for the loss to Doncastles. and in May, 1800, it was decreed that he should convey Cochran Town to Pollard, *on his paying him the sum of 5001. with interest from the 17th day of April, 1793, and the costs of the suit; and in default of payment, Cochran Town to be sold for that purpose.

The appellant, in his bill charges, “that Richard Burnley in his life-time, and Joseph Brand, as his security, were indebted to the said Thomas Cartwright in a very considerable sumbut carefully avoids stating on what consideration that debt arose.

It was urged in the argument, by the appellant’s counsel that he had paid the valuable consideration of eight hundred pounds, for Cochran Town, and therefore he ought to be reimbursed somewhere; and that Burnley, who was the first purchaser under Cartwright, and sold to Byrd, had received full satisfaction from the latter.

■This argument might be correct if it applied to Burnley and Cartwright only; and the appellant, I conceive, has still an equitable right to pursue the estate and effects of either, or both, of them, wherever to be found; until he shall receive full indemnification ; but it is not a good reason why Brand, the innocent security of Burnley to Cartwright, with whom the fraud, that has occasioned all the mischief, originated, should be answerable for all after transactions of Burnley through life; and be harassed for twenty-five or thirty years, and be made responsible for what he never undertook, nor never had in contemplation.

The decree is to be affirmed, without prejudice to the appellant, who is at liberty by all lawful means to pursue the estate of Burnley and Cartwright, wherever to be found, until he shall receive full indemnification for his loss.

Decree of the Superior Court of Chancery, unanimously affirmed, “without prejudice to the appellant, to ‘whom liberty is reserved to pursue by all legal means, the estates of Burnley and Cartwright, wherever to be found, until he receives full indemnification for his loss.” 
      
       1 Fonb. b. X, c. 2, sect. 8; lb. c. 3, sect. 4, note n.
     