
    W. B. S. Horry and others vs. Edward Frost and others.
    
      Coven ant — Estoppel.
    A covenant may be as obligatory when expressed by way of recital as if contained in the formal part of the agreement.
    F. covenanted to pay of the debts of H., deceased, a certain amount included in a statement referred to, and also one-seventh of any other debts not included in said statement through error or ignorance of the same. A decree was after-wards made for specific execution of the agreement, and F. was decreed to pay the amount included in the statement: Held. that F. was not protected by the decree from liability to pay one-seventh of a debt afterwards ascertained and established against the estate of H.
    BEFORE WARDLA'VV, OH., AT CHARLESTON,
    JANUARY, 1857.
    Wardlaw, Ch. The plaintiffs are the four children (another having lately died, infant and intestate) of Mary S. Horry, second wife, widow and executrix of Elias Horry, and one of them, Wm. B. S. Horry, is executor of his mother, who is dead, testate ; and they filed this bill Dec. 22, 1853, to enforce an agreement made by the defendants with their mother and themselves, and sanctioned by this Court, so as to compel the defendants to pay two-sevenths of a debt lately established against the estate of Elias Horry.
    Most of the estate of which Elias Horry was in possession at his death was derived from his father, Thomas Horry, and it seems that the said Thomas, on October 6, 1817, executed an instrument purporting to be his will, whereby he gave the bulk of his estate to his son Elias, for life, with remainder to the defendants, Harriet and Thomas, (and a sister, Ann B., since deceased) children of said Elias by his former marriage. It seems to be clear that this will should have been admitted to probate, but in point of fact it was rejected by the Ordinary and it has never been formally proved in the proper tribunal; and Elias Horry during his life acte'd as executor of a will bearing date in 1810, with very different provisions. The litigation likely to arise on this subject was quelled by a compromise between the defendants and Mary S., executrix of Elias, in 1835.
    This agreement, signed by the defendants only, recited first, that the instrument of Oct. 6, 1817, was the will of Thomas Horry. Second, that the defendants, influenced by affection towards said Mary and her children, had agreed to relinquish their interests under this will, and to accept in commutation certain plantations, and respectively one-severith of the residue of the estates of said Thomas and Elias, to be selected by defendants at appraised value, (household furniture, and carriage and horses being excepted,) which selection having been made, was specified in the recital — the share of Judge Frost and wife “ subject to the payment of one-seventh of the debts of said Elias,” their own debt of $11,000 constituting a portion of what they were to contribute towards debts; and the share of Thomas L. Horry, which was to be conveyed to Judge Frost on specific trusts,being liable to deduction “for one-seventh of the debts due by said Elias át his death,” reckoning the debt due to said Thomas; and that the said Mary S. had stipulated that absolute estates should be assured to the defendant respectively for the lands and chattels reserved and selected by them respectively; under proceedings in Equity if necessary, concluding herself and children. “ And the said Edward Frost engaged when the said property was delivered to him and the title thereto assured to him as aforesaid, that he would liquidate and discharge debts due by the said Elias Horry to the amount of $37,580 74, being the amount found chargeable to him by a statement made in pursuance of said agreement, and also one-seventh of any other debts which may not have been included in such statement through error or ignorance of the same.” Thereupon the parties covenanted, that Mary S., executrix, in consideration of the covenants of defendants 
      1 hereinafter expressed/ should procure absolute estates to be assured to defendants in their selected shares under the sanction of this Court; the share of Thomas to be conveyed to Judge Frost as trustee on trust for his use for life and after-wards for his issue, if any, and contingently for the benefit of Mrs. Frost and her children ; and that the defendants, when the said Mary had executed the covenants on her part by necessary deeds, should release all their interest and claims under the will of Thomas Horry in trust for the creditors of Elias Horry, and for the use of said Mary for life, with power of sale and appointment by deed or will among her children.
    In execution of this agreement, Mary S. Horry, executrix, filed her bill, May 13, 1835, against her children and the present defendants; and on June 4, 1835, a decree was rendered “ that the agreement be specifically executed/5 “ and that the Commissioner of the Court execute to Edward Frost and wife conveyances of an absolute estate of the real and personal property mentioned in said agreement as the consideration of the release by them of their claims under the will of Thomas Horry, when the said Edward Frost shall have liquidated, or provided in a manner satisfactory to the Commissioner for the liquidation of the amount of the debt assumed by him; and that conveyances be also executed by the Commissioner to Edward Frost as an absolute estate in the property reál and personal, mentioned in the said agreement, as the consideration of the release by Thomas L. Horry of his claims under the will of Thomas Horry, on which last mentioned conveyances, shall be limited the trusts in said agreement mentioned in that behalf.55
    This decree was fully executed, according to the state of facts then apparent, by Judge Frost’s paying or securing the portions of debt ascertained to be owing by him, and receiving for himself and wife, and for himself as trustee of Thomas L. Horry, conveyances from the Commissioner in fee for the shares of estate mentioned in the agreement, and by the defendants execution of a release to Mary S., executrix, of all other claims under the will of Thomas Horry.
    Afterwards a judgment was obtained in the Court of Common Pleas, in the name of Mendenhall, Ordinary, in behalf of the representatives and distributees of William Washington’s estate, for $5,983 55, besides costs and expenses, against the said Mary S. Horry, executrix, for the liability of said Elias Horry as surety of Josiah Taylor on the latter’s bond as administrator of William Washington’s estate. The existence of this debt, and thé ignorance of the parties concerning it at the time of the decree of 1835, are conceded for the purposes of the argument before me. And the controversy of the parties is concerning the liability of defendants for contribution towards this debt.
    This statement is incomplete, but the state of my employments compels me to leave complaining parties to supply my defects from the voluminous pleading and documents of the cause.
    The defendants, not interposing the Statute of Limitations, or the lapse of time, insist for defences, that they are not and never were under obligation to contribute to the payment of the debt in question; and that their executory agreement was consummated by the decree of June, 1835.
    It is plain that the agreement of defendants must be interpreted in the light of surrounding circumstances, and that whatever may be its form, it was a liberal benefaction by defendants to plaintiffs for securing the position and harmony of the family. Still it cannot be legally considered as a mere donation on the part of the defendants, without any valuable consideration ; for undoubtedly they secured benefits, in the allowance of particular estates to them, and in selecting at the appraisement equal shares of the residue of the estates, and in the avoidance of litigation as to the will under which they claimed. The agreement must be construed as a family compromise. Considered in this aspect, there is no force in the objection that the formal covenant of the defendants is merely to release certain interests in the estates of Thomas and Elias Horry. A covenant may be as obligatory when expressed by way of recital as if expressed in the formal part of the agreement. The recital of a fact in a deed, the existence of which the executing party is presumed to know, is a covenant of the existence of the recited fact. Platt on Cov. 33; 2 Cow. & Hill’s Phil. Ev. 1237. Here the defendants recite their stipulation to pay proportional parts of the debts of Elias Horry, and may be properly held to'covenant to pay such parts, as consideration of the covenants in'- their behalf.
    Next, defendants insist that all which was executory in their agreement was executed by the decree of 1835, and that having paid what was then exacted from them they are no further Liable. The principle of res judicata is properly favored by Courts as tending to the peace of society, but it would be an abuse to hold a party concluded by a judgment where he neither presented nor had the opportunity of presenting his claim. In the present case the decree as to doctrine was that the agreement should be specifically executed, and as to result, was that all the debts of Elias Horry then ascertained, should be paid according to the covenant of the parties. But the debt now in question, although protected by the agreement of the parties and the doctrine of the decree, could not be brought within the practical execution of the decree, for by concession it was unknown to the parties. When the court adjudged that the defendants should pay their stipulated portions of Elias Horry’s debts, and that the agreement should be executed,'it contemplated that all these debts, as well those then ascertained as those omitted by “error or ignorance,” should be paid. No exclusion'of debts then unknown could have been intended.
    It is adjudged that Judge Frost and wife pay one-seventh of the debt against Elias Horry’s estate, ascertained since the decree of 1835, and that Thomas L. Horry or his trustee, Judge Frost, pay another seventh ; and it is referred to Master Gray to ascertain and report the amount of such debt with costs and expenses, and the extent and manner of the payments to be made by defendants on the principles of this decree.
    The defendants, Edward Frost and wife, appealed on the grounds:
    1. For that the covenant and release under which complainants claini' the relief now prayed, was in effect a sacrifice of their interests voluntarily made by the defendants, so recognized and accepted at the time, by which great advantage was secured to the complainants, and such an instrument should not for their further advantage, be extended beyond its strict interpretation to increase liabilities so voluntarily assumed by the defendants.
    2. That the said covenant was only intended to be execu-tory until it should be carried out through the interposition of the Court of Equity; and the general terms as to other debts were intended for such debts as might be discovered in the meantime.
    3. That according to any proper legitimate construction of such covenant and release, defendants could only be held responsible for such amount of the debts of Elias Horry as was ascertained and specified in the instrument itself, and a certain proportion of any other debts ‘omitted that might then have been ascertained and specified, which would not include the present claim.
    4. That whatever may have been the proper construction of the covenants and agreements of the parties, yet when they came finder consideration in a cause before this Court and a final decree had been made, the decree must be regarded as superseding such previous claims and demands which thereby pass into rem judicatam, so that no claim can now be set up under the covenant unless recognized/ and protected by the decree, which clearly only provides for demands against the estate of Elias Horry then existing and capable of being ascertained.
    On behalf of the defendant, Thomas S. Horry, it was besides submitted. ’
    That there is no engagement or even recital in the covenant relied upon which can affect him with any debt against the estate of Elias Horry not then ascertained, all which are necessarily excluded as to him by the mode adopted to ascertain the proportion he was to receive; for otherwise the agreement could not' have been carried into effect as to him, until all the proportion of the debts that he was to answer for had been ascertained.
    
      Mitchell, Petigru, for appellants.
    
      Yeadon, contra.
   The opinion of the Court was delivered by

Wardlaw, Ch.

In the Circuit decree, this case is considered almost exclusively in reference to the liability of Judge Frost, and as if the predicament of Thomas L. Horry were identical. The Chancellor’s course of argumentation and judgment, however deficient in circumspection, was natural enough; for the burden of discussion before him was as to Judge Frost’s liability, and his attention was not specially invoked to differences in the cases of the co-defendants. On appeal, however, the case of Thomas L. Horry, is distinctively presented; still in the shape of appendix "to the grounds of appeal.

■ We have carefully conferred and deliberated as to this appeal, and we concur in the Chancellor’s judgment as to Judge Frost and wife, and consider it superfluous to extend his reasoning. We merely add some authorities that a covenant may be made by way of recital. Hollis vs. Carr, 2 Mod. 91; Severn and Clerkes case, Leonard’s R. 122; 3 Keble, 304; 2 Black R. 820; 2 Lord Raymond, 683, 1242, 1480; 1 Phil. Evid. 355.

, We differ from the Chancellor as to the liability of Thomas L. Horry. Judge Frost was adjudged liable on his covenant to liquidate and discharge debts due by Elias. Horry to the amount of $27,580.74,” ascertained by the Masters statement, and also one-seventh part of any other debts which may not have been included in such statement through error or ignorance of the same.” But.Thomas L. Plorry made no such covenant. He does not in any form contract for liability for debts not included in the Masters statement. He agreed to accept in satisfaction of his claims under his father’s will, 'one-seventh part in value of the estates of his father and grand-father, with specific exceptions, deducting from the estimated value of his, share one-seventh of the debts of his father. All of these debts were then supposed to be mentioned in the Masters statement. In execution of this agreement specific property was delivered to him, and his share of the debts was paid. He received in the arrangement, estate of much less value; for example, about sixty negroes fewer than the share of his co-defendants. The adverse parties, for some reason, retained a portion of the estate to which he was apparently entitled under his father’s will, and exacted no engagement on his part for future contingent liability. His unfitness for the conduct of business may have been the inducement for consummating at once the compromise, so far as he was concerned, while it was left partly executory as to his brother-in-law. It would be unsafe, under such circumstances, to involve him in a covenant to pay debts omitted from the statement, by extending the construction of equivocal words in the recital of his covenant. We are satisfied of the intention of the parties, that the whole arrangement concerning his share should be complete and ended at the date of the covenant Where the obligation of a party exists only by virtue of a covenant, whether formally expressed or deduced from a iecital, its extent is measured by the words or fair intendment of the covenant, and greater effect is not given to such a covenant in equity, than it has at law. Sumner vs. Powell, 2 Meriv. R. 36.

It is adjudged and decreed that the Circuit Decree be reversed as to Thomas L. Horry, and in other respects be affirmed.

Dunkin & Dargan, CC., concurred.

jDecree modified.  