
    PORTER vs. BRECKENRIDGE. GRAYHAM and ROBINSON vs. PORTER.
    
      July 29th.
    
    In the fale of a trail of land theveador committed a fraud on the vendee, by which the ellate was lef-iened in value. The courr,un-der the particular circumftan-ces of the cafe, did not let ailde the contrail; but decreed a pecuniary com-peufationto the vendee.
    T he ailignec of an equity, takes it i'uojeéí to alliherebut-íng equity attached to it in the han Is o: the aiiigncr
    Thecircum-ftances which, at the time of a tramadtionwere believed by the parties to exiit, ihiuld equally govern as the lawof thetime.
    If a man fell a bond without aligning it, it ü a ilrong pre-fumption that he was not by the control to be liable for the contents.
    THESE were two writs of error brought to reverse a decree given by the Fayette court of quarter sessions in the same cause ; but in which the interest of the several parties were distinct.
    The record presented a considerable contrariety of evidence, but the following appear to be the facts which the court considered proved, and on which they bottomed their decree. ,
    Isaac Robinson, then a resident of Botetourt county, Virginia, on the 29th day of September, 1/87, sold to Breckenridge, who was then a resident of Albemarle county in said state, a tract of land lying in Botetourt county in that state, called the Tinker creek lands, containing 356 acres, for the sum of 477/.
    Isaac Robinson represented himself as being entitled to all the land by devise from his father, John Robinson, (who had been dead some few years) except about 31 acres which he held by purchase.
    On the 1st day of December, 1787, Robinson conveyed the land by deed with general warranty to Breckenridge.
    Two hundred and seventy-seven pounds of the price of the Tinker creek land Breckenridge paid in a negro, and money, which was not controverted; and for the remaining 200/. he passed to Isaac Robinson his bond to make Robinson a deed with general warranty, to one-fourth of Barnes’s military survey on Elkhorn, in Fa-yette county.
    About the month of December, in the year 1788, Breckenridge discovered that John Robinson had died intestate — -at least that no will of his had been proved, nor could any be proved : and that it was reputed and believed in Isaac Robinson’s neighborhood, that his father, John Robinson, had, prior to his marriage with Isaac Robinson’s mother, left a wife and children, among whom was a son, in Pennsylvania, who were still living : which son (if the report were true) was the heir at law to John Robinson, and entitled to as much of the Tinker creek lands as Isaac Robinson claimed under his father. This report was by some attributed to Isaac Robinson himself.
    
      About this period, Isaac Robinson being very much embarrassed in his circumstances — reputed insolvent, or nearly so — was committed to jail for debt, and broke jail, and started to remove to the state of Pennsylvania.
    Breckenridge heard of it, followed, and overtook him early in the year 1789, at the house of his relation, James Robinson ; and charged him with the fraud in selling the land to him, when he had an elder brother living. Isaac Robinson did not deny the fact of his having an elder brother living; but agreed to endeavor to get some of his friends to go his security for the title to the land. He however failed in doing this ; and then agreed that as soon as he got into the state of Pennsylvania he would endeavor to find his elder brother, and purchase him, out, and thus quiet the claim.
    On the 9th day of October, 1789, Breckenridge not hearing any thing from Robinson, sold the Tinker creek lands to Watts, at a loss of/.272 17 3 1-2 on the lands Isaac Robinsog claimed under his father ; Watts agreeing to run the risk of Isaac Robinson’s title. This loss in the sale of the Tinker creek land was attributed to the risk of the title.
    Porter having, on the 1st day of December, 1788, re-, eeived an assignment of Breckenridge’s bond to Robinson for the fourth of Barnes’s military survey, commenced a suit in chancery in the supreme court for the Kentucky district, in August 1789, against Breckenridge and Isaac Robinson, for a specific conveyance of the land.
    Breckenridge, inhis answer filed January 7th, 1790, set up as a defence the fraud of Isaac Robinson, as before stated ; allegedthathedidnotsue Isaac Robinson to procure the contract to be rescinded, when he discovered the fraud, because Robinson was then unable to reimburse him the money paid for the land ; and that he let him proceed on his journey to Pennsylvania, in hopes he would comply with his engagement, and quiet his brother’s claim ; avered that he had not then heard of Robinson, and knew not what became of him.
    On the formation of the state of Kentucky, the cause was by law transfered to the Fayette court of quarter sessions.
    In April, 1793, Porter obtained leave from that court and amended Iris bill, and alleged that he was an innocent and bona fide assignee without notice of the fraud ; and that Breckenridge’s remedy was against Robinson, if he was entitled to any, and that he ought not to be permitted to set up Robinson’s fraud as a defence in this suit. He also stated that he had, for a valuable consideration, purchased the land of Grayham, to whom Robinson had sold it; and at the request of Grayham, took Robinson’s assignment of Breckenridge’s bond, immediately to himself. He made Grayham a defendant, and prayed a decree over against him and Robinson, if Breckenridge should succeed in whole or in part.
    Robinson, by his answer filed in November, 1793, admitted that he had once claimed the land as devisee of his father — avered that his father did make a will and devise the land to him, but admitted the will was destroyed by accident and could not be proved. He avered he claimed the land as heir at law to his father, being, as he believed, his only son : that he was then near 39 years old, and had never seen a brother.
    He admitted the sales of the land from him to Gray-ham, and from Grayham to Porter, and his assignment to Porter as charged in the amended bill; and that Porter was a purchaser without notice.
    Grayham, by his answer filed in December 1793, admitted the allegation of the amended bill, as respected him ; and that Porter was a purchaser without notice. He denied that he knew any thing of the fraud.
    It was proved by a witness who knew John Robinson in Pennsylvania, and long before his marriage with Isaac Robinson’s mother, that said John passed for, and was reputed a married man with several children, among whom was a son called James. The witness never saw the family, but heard, not long preceding his giving his deposition, that said James was living near Fredericks-burg, in Virginia ; that John Robinson left Pennsylvania, went to Virginia, and married Isaac Robinson’s mother: his former wife and children being reputed to be living.
    It was also proved that a girl was once seen on a visit in the family of said John Robinson, and was received and treated as his grand daughter by his first wife.
    It was also proved that John Robinson did make a will leaving the Tinker creek lands to Isaac Robinson, which will the witness understood was destroyed by accident.
    
      There was no proof in the cause that any person had ever seen the supposed elder brother of Isaac Robinson.There was no charge that Breckenridge, or those claiming under him, had ever been disturbed in the possession of the Tinker creek lands.
    The land now in controversy had increased in value so that it was estimated at several thousand dollars.
    In August, 1798, the inferior court pronounced an interlocutory decree, by which it was decreed that the complainant pay to the defendant, Breckenridge, on or before the first day of February, 1799, the said sum of [ AXXX XX X X-X ], with interest from the 29th day of September, 1787, until paid. That Breckenridge, on the money being paid, shdSld convey the land specified in his bond to the cémplaihant.
    And that the complainant should recover of Grayhant and Robinson the said sum of/.272 17 3 1-2, with interest until paid, and appointed commissioners to lay off the land.
    The report of the commissioners did not come in until May 1801,-when a final decree was pronounced in pursuance of the interlocutory decree ; giving however further day to pay the money and make the conveyance ; and further decreeing that Grayham and Robinson should pay to the complainant and Breckenridge their costs.
   The Opinion and Decree of this Court on the writof error Porter against Breckenridge, was as follows : In this case two questions are made — the first, is the complainant entitled to a decree for a specific conveyance of the land in the bill mentioned ? The second, if he is, snouid it be upon the terms annexed by the decree of the inferior court, or upon what terms ?

As to the first, it is conceived that a decree for a specific conveyance of the land in the bill mentioned, was right and proper ; for the fraud alleged by the defendant in his answer, is not of such a nature, nor has it been so injurious to him, as that the whole contract should be vitiated and set aside ; and if he has sustained any damages by reason of the fraud, if he is made whole, it is all that he should require ; and therefore there is no error in so much of the said decree.

As to the second, upon examining the proofs and exhibits in this cause, and viewing the transactions at the time they took place, without regard to the length of time which has elapsed, and circumstances which have turned up since ¡ the condition annexed to the decree by the inferior court is deemed proper.

Porter, the complainant* being the assignee of an equity* took it subject to all the circumstances and equity which was attached to it in the hands of the original obligee, and therefore this cause should bé decided on the same principles as if Isaac Robinson were complainant. Isaac Robinson in selling the Tinker creek land to the defendant, as devisee of his father, John Robinson, when his father had died intestate previous to the change in the law of descents, was guilty of misrepresentation. And further it appears that a reputed grand daughter of John Robinson’s, Was, is the year 1786* seen at his house in Virginia* where Isaac Robinson then lived; which affords a strong presumption that Isaac Robinson must have known of his father’s former marriage, and the circumstances atteriding it; And this presumption is greatly increased from Isaac Robinson’s conduct and confessions at James Robinson’s, when on his removal from Botetourt to Pennsylvania. Which circumstances prove that he also concealed the truth* and therefore has been guilty of fraud; At the time of the contract the defendant lived in Albemarle and Isaac Robinson in Botetourt. John Robinson had not been long dead, and shortly after the contract a report is currently circulated and generally believed in Botetourt that John Robinson had married a wife in Pennsylvania* by whom he had a son ; and during the life of that wife married another in Virginia ; and that Isaac Robinson had an elder brother to the northward, who was heir at law to John Robinson: and therefore the defendant was not safe in his purchase; The defendant, upon coming to Botetourt some time after, is informed of the report; that it was generally believed ; and that Isaac Robinson was removing to Pennsylvania. He pursues ahd charges him with the fraud. Isaac Robinson does not deny the fact * endeavors to prevail on one of his relations to become his surety to the defendant to indem-dify him : his relation refuses, because he believes the report true. Isaac Robinson then promises to purchase' tip and extinguish his elder brother’s right, and transmit it to the defendant.

The conduct on the part of Isaac Robinson was an admission that the report was true, and rendered it unnecessary for the defendant to trace it farther, when he found that Isaac Robinson had failed in his promise to purchase and transmit his elder brother’s right; that he had tvasted and squandered the property and money which the defendant had paid him ; that he had left the state in defiance of its laws, in a state of insolvency ; and that the probability was great that this elder brother might and would assert his claim to the land. It is conceived that every prudent man would endeavor to avoid the loss ; and the measure pursued by the defendant is deemed as fair and just a one, under the whole circumstances as they then stood, as he could have pursued. Because if the brother had then came fonvard, asserted and established his claim, the sum for which the defendant sold the land was so much saved to Isaac Robinson, who, in case a sale had not been made and an eviction had taken place, would have been liable for the full value of the hind. Nor ought he now to complain at being obliged to make lip a loss which the defendant has sustained in consequence of a report which he sanctioned and admitted.

The length of time which has elapsed, and this elder brother not having appeared and asserted his right, ought not to influence the decision of this cause ; but it should be determined upon the circumstances which existed, or which there was well grounded apprehensions to believe did exist, at the time the transaction took place ; for the circumstances which were believed to exist at the timei should equally govern as the laxv of the time.

If the circumstances arose from the fears of the defendant, those fears were produced from a report that currently circulated ; was generally believed ; and instead of being denied by Isaac Robinson, was admitted and sanctioned by his attempt to get security to indemnify the defendant ; and on failing in that, by promising to purchase and extinguish the claim of this elder brother. And' although there is no positive proof that the report originated with him, yet it was so stated in the neighborhood, and from his conduct and confessions produced as great injury to the defendant as if he had raised the report : in which case no doubt can exist that he should be answerable.

There is therefore no error in the said decree annex-$ng the payment of a sum of money equal to the loss sustained by the defendant, which has been ascertained by the court below to be Z.272 17-3 1 -2. Butthecourt mistook the time at which interest should comraénce : the time fixed by that decree is the 29th day of September 1787, which is the date of the contract between Isaac Robinson and the defendant, when the true period at which the defendant sustained the loss was on his sale to Watts, which was on the 9th day of October 1789 ; and from this date should the interest commence.

Therefore, it is considered by the court that the cause be remanded to the'Fayette circuit court, with directions to correct the decree as aforesaid, and to fix the time of payment of the money, and when the conveyance shall be made ; and that each party pay their own costs in this court.

The Opinion and Decree oe this Court on the writ of error Grayham and Robinson against Porter, was as follows : From the allegations in the bill and answer, the true meaning of the contract between Porter and Grayham, as to Grayham’s liability, is not shewn.

There is no charge of fraud on Grayham, nor is it stated that he consented to become responsible in any manner whatever; and his not having assigned the bond, affords a strong presumption that he was not to be liable ; and from the complection of the cause, it rather appears that Grayham was made a defendant for another purpose than thatoi contesting Porter’s right to re-, cover over against him.

Therefore, it is considered by the court that the decree aforesaid be reversed and set aside, reserving the liberty to Porter to amend his bill in such manner as to shew his right to recover against Grayham or Isaac Robinson, or to bring such suit or suits as he may think proper^ and that the plaintiffs recover of the defendant his costs in this behalf expended.  