
    Green v. Price.
    Thursday, October 25, 1810.
    a. Equitable Title — Effect on Mortgagee without Notice. — A mortgagee without notice, shall be protected against a prior equitable title: if the person having such title, either encouraged him to take the mortgage, or, knowing of his intention to take it, stood by, and made no obj ection.
    Fortunatus Green filed his bill in the Superior Court of Chancery, for the Richmond District, on the 1st of March, 1802, against Thomas Price, and the children of Richard Littlepage, deceased ; for the purpose of obtaining a title to a tract of land, containing 261 1-2 acres, in the county of Hanover.
    From the bill, answer of the defendant Price, exhibits and depositions, the following statement of the most material facts in the case may be extracted.
    Robert Bumpass sold the land in question to John Ferguson, but did not make him a deed; neither does it appear in evidence how much money was paid by Ferguson ; though the bill alleges (without proof) that he paid only 501., and the surveyor’s fees. On the 7th of May, 1786, Ferguson gave a bond to Benjamin Kimbrough to make him a title to the said land, when he should himself obtain a deed from Bumpass; reciting in the condition of that bond that Kimbrough was to pay for the land, 450 on or before *the 1st ot January ensuing, 1501., and on or before the 1st of January, 1788, the farther sum of 1751.; provided the said Ferguson could then make a title; and, if he could not, it was agreed that the last-mentioned sum was not to be paid until such title should be made. The plaintiff alleges in the bill that, in September, 1788, he took Kimbrough’s bargain, and, in January, 1789, received possession of the land, “which he had retained ever since.” It seems that, while a suit in the High Court of Chancery, by Ferguson against Bumpass, to obtain a conveyance for the land, was pending, Richard Dittlepage bought the title of Bumpass, for 1001. cash paid by Fortunatus Green, the plaintiff, and for his benefit, as he alleged; but the deed, which was dated the 14th of February, 1794, was made to Eittlepage himself, conveying absolutely “to him, his heirs and assigns, all the right and title of the said Bumpass, for the consideration of 1001. paid by him the said Eittlepage,” and warranting the right and title of the said land 1 ‘against the claim of any person or persons whatsoever, except the claim of John Ferguson, or his representatives, which now is in dispute.” To this deed the plaintiff was one of the witnesses, and, partly on his testimony, it was recorded the 4th of April, 1794. The next day after its date, a writing under seal was executed from Littlepage to the plaintiff: setting forth that John Ferguson had contracted with Robert Bumpass for the said 261 1-2 acres of land which the said Ferguson took possession of and sold to Benjamin Kimbrough, who then disposed of it in the following manner; “viz. 61 1-2 acres said to be sold to a certain Samuel Nuckolls, and the remainder to Fortunatus Green, who is now in possession of the said land, though the right still remains in Robert Bumpass, who had conveyed to Eittlepage by virtue of a power of attorney. Now be it understood that Fortunatus Green hath this day advanced to me, (the said Uittlepage,) as attorney for the said Bumpass, the sum of 1001., which sum I do oblige myself to return the said Green with interest thereon from the date hereof, or make him a lawful right to the said two hundred acres of land. And I do further oblige myself as attorney for Robert Bumpass, and in behalf of the said Fortunatus Green, that no other person shall have a right to the 200 acres of land but himself, until he is returned the 1001., with interest, as is before mentioned; for the faithful performance of which I do hereby, as attorney for Robert Bumpass, bind myself, heirs, &c. in the penalty of 5001.”
    *The 2d of March following the plaintiff paid Littlepage a farther sum of 261. 9s. for which he gave a receipt “promising to account for it in the same manner as for the 1001. received of him the last month on account, of Robert Bum-pass;” and signed “Richard Littlepage for Robert Bumpass and self.” A farther payment of 81. was made the 11th of July, and a similar receipt taken: and on the 20th of May, 1799, the said Littlepage, by a writing under seal, obliged himself, his heirs, &c. “that the balance of the money due him from Fortunatus Green, for the land whereon he lived, should remain in the hands of the said Green until he the said Littlepage should satisfy the amount of three executions which had been paid for him by the said Green.”
    It was fully proved, that, at the time the deed was executed from Bumpass to Little-page, a witness advised the plaintiff, (who it seems was present,) “that it would be best for him to take the deed from the said Bumpass in his own name;” whereupon the said Littlepage observed “that, if the right should be made to him, it would put it out of the power of Ferguson ever to make the plaintiff a right; and that it would enable the plaintiff to recover three or four hundred pounds as damages of the said Ferguson ; and that he would get his land clear;” to which arrangement the plaintiff assented.
    It was further proved that, by the contrivance of Littlepage, and with the assent of the plaintiff, a declaration in ejectment was served upon the latter; the lawyer’s fee for which appears to have been paid by the plaintiff to Littlepage; to whom he surrendered the possession of the land, and immediately resumed it as his tenant; agreeing to pay ,ten dollars a year rent, as long as he should remain on the land; that Littlepage afterwards declared that, after recovering the land by law of the plaintiff, he had sold it to him for a certain sum of money, and. for the benefit of his claim against Ferguson; which sum of money and claim were understood, b}r a witness who stated what Littlepage said, to be in full discharge of the contract between them for the said land.
    What became of the claim upon Ferguson does not appear in the record; but after all these transactions, (of which it does not appear that Thomas Price had any notice,) upon a settlement of accounts between the said Price and Littlepage, on the 17th of February, 1801, a balance of 1561. 2s. 452 3d. 1-2, being due from *the former to the latter; and it being proposed that that balance should be taken by Price upon the plaintiff, the plaintiff readily agreed to it, (acknowledging himself to be still indebted to Littlepage, for and on account of the same land,) and expressed great satisfaction (at that time, and repeatedly afterwards) at this arrangement. A contract was then made between Price and the plaintiff, that Price should take in payment, his produce, at the highest Richmond cash price; that the plaintiff should do a job of brick-work towards payment of the debt, and that Price should let him have certain articles of the grocery kind for the use of his family at the Richmond cash price.
    
    By a writing, dated the same day, (to which the plaintiff appears to have been privy, without making any objection,) Littlepage “obliged himself, whenever called upon by the said Price, to give him an instrument of writing vesting him the said Price with all the rights and immunities that he the said Littlepage holds in the 200' acres of land on which the aforementioned Fortunatus Green now lives; which right the said Price is to hold until the above-mentioned sum (of 1561. 2s. 3d 1-2), with the interest accruing, is fully paid. ” The first of March, 1801, a mortgage on the said 200 acres of land was given by Littlepage and wife to Price, to secure the payment of the same sum of money, with interest, and proved in Court by one witness, the 21st of May following; but does not appear to have been fully recorded. A bill to foreclose that mortgage was filed in Hanover County Court against the children of Richard.Littlepage, without making Fortunatus Green a part}1', and a decree for the sale of 453 the mortgaged *premises obtained December 22, 1802; to which decree the present plaintiff obtained, on the 3d of June, 1803, from the Superior Court of Chancery, a writ of injunction to stay proceedings upon it until the further order of that Court.
    The prayer .of the bill in this suit was, that the mortgage be cancelled, that all the defendants be compelled to join in a deed conveying to the plaintiff in fee the land aforesaid; or that he might receive any further or other relief more agreeable to equity. No answer was filed on behalf of Littlepage’s children, and no proceedings against them appear in the record; according to which, on the 28th of September, 1804, “the papers in this cause were put into the hands of the Court, upon motion, by counsel for the defendant Thomas Price, to dissolve the injunction which had been awarded the plaintiff; but the cause being regularly set for a final hearing as to that defendant, the plaintiff’s counsel moved the court to proceed to hear the same in chief as to him;” whereupon, the cause was heard as to the defendant Thomas Price, and the bill, as to him, dismissed with costs; from which decree the plaintiff appealed.
    Randolph, for the appellant.
    Wickham, for the appellee.
    Saturday, November 3.
    
      
      Equitable Title — Effect on Purchaser without Notice. — See foot-note to Hooe v. Pierce, 1 Wash. 212. On the subject of mortgages, see monographic note on "Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      Note. It is alleged in the answer, that, “after the death of Littlepage, (which happened in a few weeks from the time of this transaction,) and not until then, the plaintiff began to prevaricate; and, after making several promises, and appointing' several days to commence the brick-work according to his contract, at length declared he would do-no work unless he received cash for the same; that he considered Littlepage as fully paid for the land, and that, notwithstanding his frequent promises, he would pay the defendant nothing.” This allegation in the answer, is supported by several depositions, and not contradicted by any evidence. —Note in Original Edition.
    
    
      
      Note. This instrument of writing recited, in its commencement, that Littlepage, to secure the payment of the said balance, with interest from the date, had given an order on Green, which he had that day accepted, in favour of Price. But, probably, this was only a verbal order and verbal acceptance; for no written order is mentioned in any part of the record. In the answer it is said, (by a plain mistake.) not that Littlepage had given, but that, by the said instrument of writing, he obliged himself to give such an order. — Note in Original Edition.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

The only question in this case appears to me to be, whether a man, who, having an equitable title to lands, and, knowing of it, stands by, and either encourages, or does not forbid the purchase, (or, what is the same thing, the mortgage thereof to another,) shall be bound by the purchase or encumbrance thus made? In the present case, the complainant Green appears from the testimony to have encouraged Mr. Price to take the mortgage from Eittlepage; and, by so doing, 1 conceive he has bound himself, and all claiming under him. I am of opinion, therefore, that the decree dismissing the complainant’s bill be affirmed,

JUDGE ROANE said it was a plain case for affirming the decree.

*JUDGE FLEMING.

This appears to be one of the clearest cases in favour of the appellee that ever came before a Court of Justice. There seems to have been a combination between Eittlepage and Green (the latter of whom affects great ignorance) to swindle John Ferguson out of three or four hundred pounds; but in that nefarious business Price was no party: nor is he to be affected by it. The case is too plain to need further animadversion; and I shall only add that it is the unanimous opinion of the Court that the decree, dismissing the bill against Price, be affirmed. 
      
       See 1 Font), b. 1, c. 3, s. 4; 1 Wash. 217, Hooe & Harrison v. Pierce's Adm’r; Ibid. 289, Applebury and others v. Anthony’s Ex’rs; 1 Vern 136, Hobbs v. Norton; 2 Vern. 370, Draper v. Borlase; 2 H. & M. 116, Pollard v. Cartwright.
     