
    *Taliaferro v. Foote.
    May, 1831.
    (Absent Tucker, P., and Brooke, J.)
    Equity Practice — Lost Deeds — Biil — Averments. — Where a plaintiff resorts to a court of equity for relief. on the ground that a deed on which his claim depends has been lost or destroyed, the claim being such that if he had the deed he would have complete remedy by action upon it at law; the bill must distinctly aver the loss or destruction of the deed, and it must be shewn that it could not be found upon due search; otherwise the court of equitj has no jurisdiction of tne case.
    'Same — Same—Same—Affidavit.-—And such a bill must be accompanied with an affidavit of the loss or destruction of the deed; the want of such affidavit is good cause of demurrer.
    This was an appeal from a decree of the court of chancery of Fredericksburg, in a suit brought by Richard Foote, against James Taliaferro. The bill contained a great deal of matter, which Foote deemed pertinent to his object, and concerning which much was said in the argument, but which this court thought wholly irrelevant; and Taliaferro’s answer related, for the most part, to the irrelevant allegations of the bill.
    The bill set forth, that William Thornton Alexander deceased, in his lifetime, by deed executed in October 1802, conveyed about forty slaves inter alia to John Taliaferro, his wife’s brother, upon trust, that he should hold the trust subject, and pay to Alexander, during his life, a stipulated sum yearly for the profits thereof, and with respect to the slaves, should convey them and their increase, at Alexander’s death, to Lucy Alexander his wife and her heirs. That the same W. T. Alexander, by another deed executed in December 1804, conveyed about twenty-two other slaves inter alia to the same trustee, upon trust, that he should pay the profits of the whole trust subject, to Mrs. Alexander during her life, and in case she should die before her husband, then to him during his life, and, after the death of both, convey the slaves and their increase, to *such person or persons as Mrs. Alexander should by last will and testament appoint, and in default of appointment, to such persons as would have been entitled thereto if she had never married Alexander. That the same W. T. Alexander and Lucy his wife and Taliaferro the trustee, joined in a deed executed in April 1808, conveying to the defendant James Taliaferro, who was also a brother of Mrs. Alexander, the reversion in fee of all the slaves settled upon her by the two first mentiqned deeds, reserving to her a life estate therein ; (this deed contained a general warranty of title to Taliaferro). That W. T. Alexander died in August 1816, his wife Lucy surviving him; and that she executed a deed and agreement with James Taliaferro in September 1816, whereby she released to him her life estate in all the slaves and their increase, except thirty-seven, whereof she retained the life estate to herself. That, shortly after the execution of the deed of September 1816, the plaintiff married Mrs. Alexander, and hereby acquired the possession of the thirty-seven slaves reserved to her for life by that deed. • That then an agreement was made between Foote now the owner of his wife’s life estate in these thirty-seven slaves, and James Taliaferro the owner of the reversion, whereby Talia-ferro agreed to release to Foote his reversion in twelve of them, and Foote to release to Taliaferro the life estate in the residue; in pursuance of which agreement, Taliaferro executed a deed to Foote, conveying the twelve slaves to him in absolute property, with a general warranty of title. That this deed was put into the hands of John Talia-ferro, who promised to have it recorded in the county court of King George, in which county the deed was executed; it never was recorded or deposited there, and if it was not still in John Taliaferro’s possession, the plaintiffs knew not where it was to be found; but the bill did not state that the paper was lost, or that any inquiry or search had been made for it. That not long after this transaction, Mrs. Foote died. That recently, in a suit in chancery prosecuted by the creditors of William T. ^Alexander, against the parties claiming under his two deeds' of October 1802 and December 1804, those deeds had been declared void as to his creditors, and the subject held liable to his debts. That an execution sued out by some of the creditors, had been levied, at the particular instance of the defendant Taliaferro, on the twelve slaves and their increase held by the plaintiff Foote, which had been conveyed to him by the defendant Taliaferro in absolute property with general warranty, and those slaves had been all sold under the execution, for about 1800 dollars. And the prayer of the bill was in the alternative— either a decree against Taliaferro, for the value of twelve slaves, upon the strength of his alleged warranty of the title thereof; or, at the least, a decree for such proportion of the value thereof, as the value of the twenty-five slaves of which Foote released the life estate to Taliaferro, bore to the value of the twelve slaves which Talia-ferro conveyed and warranted to Foote. (The bill represented the two deeds of April 1808 and September 1816, as perfectly voluntary on Mrs. Alexander’s part, and flowing from her bounty to her brother; but it did not impute any fraud to him in those transactions, or seek to impugn the validity of the deeds upon any ground: it seemed, that the plaintiff set forth the deeds of October 1802, December 1804, April 1808, and September 1816, by way of inducement to the allegations touching the agreement made between him and the defendant, and the defendant’s conveyance of the twelve slaves to him, to corroborate his assertion that this conveyance contained a general warranty of title, and to shew the reasonableness of the relief he prayed).
    James Taliaferro, in his answer, detailed at great length, the history of the transactions between him and his sister Mrs. Alexander, afterwards Mrs. Foote; and exhibited some other contracts between them, besides the deeds of April 1808 and September 1816 mentioned in the bill, con- ' nected with and explanatory of those conveyances. He asserted, that the conveyances of April 1808 and September *1816, instead of being voluntary' on the part of his sister, were founded on valuable and adequate consideration paid and performed by him; which was the reason why the deed of April 1808 contained a general warranty of the title to him. And as to the contract between him and Foote, which was the foundation of the claim set up in the bill, he denied, that his deed to Foote of the twelve slaves, contained any warranty of title; it was a simple conveyance of his interest; the contract consisted in mutual releases; a release by him to Foote, of his reversion in those slaves, and a release by Foote to him of his life estate in the residue of the thirty-seven slaves. He acknowledged, that he had procured the execution sued out by W. T. Alexander’s creditors, to be levied on the slaves held by Foote; and justified it, on the ground, that the slaves held by him had been purchased for valuable consideration, and conveyed to him with general warranty, so that the slaves held by Foote ought to have been subjected to the creditors of Alexander, before those held by him; and that he had reason to apprehend that Foote intended to remove the slaves he held beyond the reach of process.
    The depositions of Aaron Grigsby and John Taliaferro, who were both present when the contract was executed between the plaintiff and defendant, confirmed the account given in the answer, of its nature, purpose and terms.
    The deponent Taliaferro was the person to whom (as the bill alleged) this instrument was confided, that he might have it recorded ; yet the plaintiff made no inquiry of him concerning the disposition he had made of it. No affidavit that it was lost or destroyed, was annexed to the bill; nor was there any evidence, that it was in fact lost or destroyed, or otherwise not within the power of the plaintiff.
    The chancellor decreed that Taliaferro should pay Foote the value of the twelve slaves, as ascertained by the sale of them under the execution levied on them, whereby he was evicted of the title and possession.
    Taliaferro appealed to this court.
    *The cause was argued here, by Johnson for the appellant and Harrison and Stanard for the appellee,
    upon its general merits, in the discussion of which, the several contracts between Taliaferro and Mrs. Alexander, and the character and effect of them, were minutely scanned, and the question as to the probable terms of the contract between Taliaferro and Foote, and consequently the effect of that contract, examined. But Johnson took an objection to the jurisdiction of the court of chancery to relieve in such a case, which was held fatal.
    
      
       He was nearly related to the appellant.
    
    
      
       Equity Practice — Lost Deed — Bill—Affidavit.—To tie point that an affidavit must accompany the hill alleging the loss of a deed, the princpal case is cited in note to Lyman v. Lyman, 15 Fed. Cas. 1159.
    
   CARE, J.,

delivered the opinion of the court, That the case made by the bill was not within the jurisdiction of a court of equity.

A good deal is said in the bill, about the deed of 1802, the deed of 1804, the deed of 1808 and of 1816 — but these make no part of the case on which relief is asked; nothing is charged with respect to them, or put in issue. If the bill had charged what has been advanced in the argument here, that the execution of the deed of 1808 was procured by Taliaferro from his sister Mrs. Alexander, by fraud, deception, or imposition, that would have given jurisdiction; but, as the case stands, that deed evidences a sale by her of a reversion, for a valuable consideration, with warranty. The bill should have stated such facts, in such a way, as would give the court jurisdiction. But the case on which the plaintiff asks relief is, in substance, this: that he became the purchaser of a parcel of slaves from the defendant, the title of which afterwards failed, and that the defendant is liable on his warranty of title, to make good to the plaintiffs the damages he has sustained. Prima facie, this is surely a case for a court of law. The bill alleges, that the defendant gave him a deed or bill of sale of the slaves with warranty; but it does not allege, that this deed is lost or destroyed. It alleges, indeed, that it was confided to John Taliaferro, who promised to have it recorded; that it was not recorded or deposited in the clerk’s office; and, *if it was not in John Talia-ferro’s possession, the plaintiff did not know where it was to be found: but John Taliaferro was not made a party; no inquiry was made of him; no step taken to ascertain the loss, or to set up the instrument, if lost. And no affidavit that the instrument was lost, accompanied the bill; which is indispensable, where a party comes into equity to set up a lost deed. In the case of the East India Company v. Boddam, 9 Ves. 465, lord Eldon says, the course upon a lost bond, was to file the bill stating the loss, and “accompanying it with an affidavit, that it was lost, not as evidence of the loss, but as a security for the propriety of jurisdiction:” and it is laid down in alt the books which treat on the subject, that the want of this affidavit is cause of demurrer. This bill then makes no case for a court of equity.

But if it did, the case is not supported.. The bill states, that the defendant gave a deed with general warranty. The defendant answering this charge directly, “denies, that he ever made the conveyance for slaves, to the plaintiff, in the manner stated in the bill; the conveyance was for the claim of this defendant to the reversion, without warranty.” And this assertion derives aid from the depositions of John Taliaferro and Grigsby: but it needs no such aid, being a direct and positive denial of the statement in the bill. We must take it, then, that this was a sale of the defendant’s claim merely, and a deed conveying that without warranty. It was said, that every sale implied a warranty of title; and this is true, where it rests simply on the sale; but where there is a sale of a party’s interest merely, and the deed is given without warranty, will not that rebut the implication? At any rate, when the warranty is contended to be implied by the sale only, there can be no propriety in coming into equity to set up a deed which contains no warranty: the resort should clearly have been to a court of law.

Decree reversed with costs, and bill dismissed.  