
    Thornton v. Corbin.
    [Thursday, May 5th, 1803.]
    Deposition — Validity of Taking. — Semble, that a deposition taken under a commission, awarded beiore the bill was filed, and executed by two persons, of whom one was not a magistrate, may be read in a subsequent suit.
    Marriage Contracts — Parol—Validity.—A parol marriage contract, made beiore the act of 1785, supported against a subsequent voluntary conveyance.
    Thornton, as trustee for the estate of Joseph Eobinson, brought a bill in Chancery, against Corbin, stating; that Benjamin Eobinson, the elder, on the 10th of February, 1757, conveyed 450 acres of land, including a mill, in trust, as to the mill, for himself, and wife, who is since dead, for their lives; and from and after the death of the survivor, in trust, as to a moiety of the mill, &c. for Joseph Eobin-son, in fee, and, as to the other moiety and the lands, in trust for Benjamin Eobinson, the younger, in fee tail, with remainders over. That Benjamin Eobinson, the younger, took possession and died seised of the lands, and of a moiety of the mill, in tail; leaving Benjamin Eobinson his eldest son and heir, who sold to the defendant. That Joseph Eobinson conveyed his moiety of the mill to the plaintiff, in trust, to sell and pay his debts. And, therefore, the bill prays an account of a moiety of the profits of the mill, and for general relief.
    *The answer states, that the defendant has seen a deed, of the 10th of February, 1757, to Pendleton, (which he supposes is that spoken of in the bill,) and if it has conveyed any thing, in the said mill, Pendleton would have the legal estate: But, that it did not convey any thing; because Benjamin Kobinson the elder, had before parted with the equitable estate therein, to Benjamin Robinson the younger. That, the defendant has heard of a former suit in Chancery, respecting a moiety of the mill; to which he refers. That, the defendant bought the whole, from Benjamin Robinson the younger, and has had quiet possession from the year 1783.
    The equitable right mentioned in the answer, was a claim under a marriage contract; concerning which, several depositions were taken in this suit, and one had been taken in the former suit mentioned in the answer.
    Among the .exhibits are:. 1. A copy of the deed of trust from Benjamin Robinson the elder, to Pendleton. 2. A copy of a deed from Benjamin Robinson, jun. to Benjamin Robinson, sen. which is dated 10th of March, 1757, and after reciting a former deed from Benjamin the elder, to Benjamin the younger, for 1000 acres of land in Orange, and that the elder had since given the younger a tract of 5Ú0 acres in Caroline, in exchange for it, conveys the 1000 acres to Benjamin the elder, for the use of his sons Charles and Thomas. 3. A copy of the said recited deed for the Orange land, dated 27th September, 1753. 4. A copy of the partition between Page and Benjamin Robinson the elder, dated 2d December, 1756. 5. A copy of the title bond from Benjamin Robinson the grandson, to Corbin, dated 12th June, 1782. 6. A copy of the deed of trust from Joseph Robinson to the plaintiff, dated 10th November, 1787.
    *At the hearing in the County Court, the reading of Thornton’s deposition was objected to by the plaintiff: upon which, Corbin filed a bill of exceptions stating the deposition ; that Thornton died before the institution of this suit; that the defendant in that suit was the same person for whose benefit this suit is brought; that the Clerk who attested the copy of the deposition is dead; that it was objected to by the plaintiff, because the certificate of the taking of the deposition is subscribed by Anthony Thornton, who was not then a Justice of the Peace, and by James Taylor, who says that he does not recollect whether he subscribed the same, or whether it was taken; and that the Court did not permit the said deposition of Thornton to be read.
    Memoranda to the following effect, appear in the record:
    At November Caroline Court, 1773, Thomas Slaughter was appointed guardian of Benjamin Robinson, the son of Benjamin Robinson the younger. At December Court, 1773, a commission was awarded to take the depositions of Anthony Thornton and Sarah Slaughter, in the suit Benjamin Robinson v. Joseph Robinson. At March, 1774, the bill was filed. August, 1782, attachment for answer: After which, is a certificate of the present Clerk, that these were all the steps taken in that cause; and that no depositions appear to have been filed.
    There is, also, a memorandum, stating, that Thornton was recommended as a Magistrate at Caroline September Court, 1776, and not before.
    The County Court decreed a moiety of the mill and profits, to the plaintiff; from which decree, Corbin appealed to the High Court of Chancery; where the decree of the County Court was reversed; and from the decree of reversal, Thornton appealed to this Court.
    *Call, for the appellant.
    The appellant was, under all the circumstances, entitled to relief. Thornton’s deposition was not admissible; for, as the suit between the Robinsons had never been decided, the deposition .was never established by the judgment of any Court, and therefore, might be excepted to in this suit, in the same manner as it could in that: But, if so, then clearly it ought not to be read; because the commission to take it was improperly awarded, for it was before any bill was filed. Old Virginia Laws, 177. And it appears by the testimony in the cause, that one of the commissioners who took it, was not a Magistrate.
    Warden, contra.
    It is not absolutely necessary that the persons who execute commissions to take depositions should be Justices of the Peace, for any person may do it, if appointed by the commission. That no bill was filed, makes no difference; because the act of Assembly merely applies to commissions granted by the Clerk ex debito jus-titias, and not to such as are granted by the Court in session.
    Wickham, on the same side.
    The commission might be executed by a person not a Magistrate; and all foreign commissions are thus executed. That the bill was not filed is not material, as the case might have been urgent. And' the act is affirmative, that the Clerk may grant, and not negative, that the Court shall not grant, a commission during term, unless the bill be filed. Besides, this exception was not taken at the hearing in the County Court. The Court of Equity had no jurisdiction, as the statute executed the use to the possession ; and, therefore, an ejectment might have been brought. But, the deed to Thornton was clearly void,as Joseph Robinson was out of possession at the time of making it. Besides, Joseph Robinson ought to have been made a party to the suit.
    ^Randolph, in reply.
    The Court of Equity had jurisdiction, because it was a trust, which alone conferred jurisdiction. Besides, there was no plea in abatement, and therefore it is too late to object now; for, the act of Assembly precludes it. The point relative to Joseph Robinson being out of possession, is now under consideration of the Court, in Duval v. Bibb, ante, p. 362. None but a Magistrate can execute commissions to take depositions wifhin the state. The marriage contract, even had it been proved, is not recorded; and, therefore, is void against Joseph Robinson.
    Wickham. He was a mere volunteer; and therefore has no superior equity.
    Randolph. The act of Assembly only uses the word purchaser, and does not say for valuable consideration. Ward v. "Web-ber, 1 Wash. 274.
    Cur. adv. vult.
    
      
      Marriage Contracts- Parol — Validity.—The principal case is cited in Claiborne v. Henderson, 3 Hen. & M. 358, to the point that, a parol marriage agreement respecting lands was valid even after the act of 1748. against all subsequent purchasers of the land except such as were for valúa,ble consideration.
      Same — Deed Variant from Terms of — Effect.—The principal case is cited in Arganbright v. Campbell, 8 Hen. & M. 177, to the point that a deed variant from the terms of a marriage promise is not obligatory on the party. And in Nelson v. Harwood, 3 Call 407, to the point that a deed covenant to convey as soon as the party should recover the estate, was obligatory.
      Redocketing Causes. — On this question the principal case is cited in Beasley v. Owen, 3 Hen. & M. 449.
    
   ROANE, Judge.

The weight of testimony in this cause being in favor of the appellee, independently of the testimony of Anthony Thornton, it is unnecessary to decide how far his deposition is admissible, or not, in consequence of its having been taken before a person who is alleged to have been no Magistrate. I shall barely remark, however, that this case differs from that of Blincoe v. Berkley, 1 Call, 405, in that, here a commission was regularly awarded by the Court; the parties attended in pursuance, and as no objection was taken to the deposition at the time, it shall either be intended that Anthony Thornton, jun., was then a Magistrate, or that the parties agreed that the deposition might be taken before him. The certificate that that gentleman was not recommended to the Governor until a posterior time, is not conclusive evidence that 'he was not a Magistrate before; as it was, in some instances probably the practice, to commission persons' who had not been recommended.

*1 throw this out, however, only as my present impression. The testimony of Mrs. S. and T. S. go directly to establish a marriage agreement on the part of old Colonel Robinson. This was a most interesting fact for the family, and one which would have made an indelible impression. It is only confronted by the belief of Mr. Pendleton, that Mr. Benjamin Robinson’s first knowledge of his title was derived from him, in or about the year, 1755; but as he does not speak from his memoranda at the time, it is probable he may be mistaken as to the year; and even if not, the pleasure discovered by old Mr. Robinson on the information received from him, may have arisen from his great reliance on the judgment and professional skill of that gentleman, and, consequently, may not be inconsistent with a knowledge on this subject previously derived from other sources. Admitting, then, this testimony to be as respectable as any whatever, yet it is overbalanced by that of the two witnesses before named; and their testimony is confirmed by that of Barnes.

Great stress was laid by Mr. Randolph, on the deed of 10th March, 1757, for the Orange land, (by B. R. jun.) which he supposes contains a recognition of the deed of the 10th February, 1757; but it only admits the fact, that Benjamin the father had before conveyed to him the Caroline land. This was probably from verbal information, as the deed of February, 1757, was probably then in the Caroline office. It is certainly, however, by no means inferrible from the deed of March 10, that that of February-had ever been seen by him; far less that he was a party to it; and, if that deed varies from the terms of the marriage promise, it was not obligatory on him.

Mr. Randolph contended, that the marriage promise was void against purchasers under the act of Assembly. Admitting, (which cannot be denied,) that parol marriage agreements were then valid, ^according to this doctrine the prom-iser would have nothing to do but refuse to execute the deed, and then convey the land, which would defeat the promise. The admission, therefore, is inconsistent with the conclusion he draws. The intention of the act was certainly not of this kind ; it was to compel persons, who had written contracts or agreements, to record them for the information of others within a reasonable time.

I am, therefore, of opinion, that the case is a plain one, and that the decree of the Chancellor ought to be affirmed.

FEEMING, Judge.

The first question made at the bar, was, whether the marriage contract was established? And I am of opinion that it is. Thornton’s deposition, which clearly proves it, is objected to, as having been illegally taken; but, besides that, if it were necessary to investigate the point, it would perhaps turn out that the objection is not well founded; there is ample testimony to support the contract: For, the depositions of the two S’s are full to that effect; they state the circumstances with such precision as to leave no doubt upon the mind: and they contain nothing which is inconsistent with that of Mr. P., who like them, speaks merely from memory, and may have been mistaken as to dates.

It is said, however, that even if the contract were proved, yet still it was destroyed by the deeds of September, 1753, and March, 1757: because, the first merged the parol contract, and. the latter recognized the right of Joseph. But, I am of a different opinion: For, the object of that of September, was only to secure the Orange land to Benjamin the son, in case the moiety of Page’s was not recovered; but as soon as that should be recovered, it was to be conveyed, and the other restored. Therefore, so far from this deed merging, it rather affirmed the marriage contract: And, with *respect to that of March, it does not appear that Benjamin the son, if he meant to refer to the trust deed, had ever seen it or knew what it contained; for, he states it to be for 500 acres, without any restriction, although it gave him only 459 acres after the death of his father and mother, with a moiety instead of the whole of the mill; and even these were to be held in tail, instead of fee simple. Hence, it is plain, that if he , did mean to refer to that deed, he was a stranger to its contents, and was deceived as to the purport of it: Which mistake, the father, never removed, but, on the contrary, is said by one of the witnesses to have been in the habit, long afterwards, of speaking of the whole mill as belonging to Benjamin the younger, after his own death. Of course, no inference can be drawn from this supposed recognition.

Blit', then it is urged that the marriage contract, not having been recorded within the eight months, is void against purchasers by the act of Assembly. Old Edit. Laws, 143. The purchasers meant in that act, however, are those for valuable consideration, and not mere volunteers. Of course, the argument does not apply to the present case. But, to remove this difficulty, it was said that the gift to Joseph was a provision for a younger son, and that this was a good consideration. The observation at first sight, is plausible; but there is no force in it. For, besides that, Joseph wa's, in fact, the eldest and not the younger son, it appears by his deed of trust to the appellant, that his father had devised to him the Moon’s-mount estate, containing 1,100 acres, which was probably a better provision than that made for his brother Benjamin.

There are other circumstances which have some weight; for, it seems that Joseph abandoning his claim under the deed of trust, relied upon the will to support his right; that after Benjamin the grandson, sold to Corbin, he gave *him possession in the presence of Joseph, and that the latter even turned his own miller out of the mill, and suffered Corbin to remain in quiet possession for several years, before he executed the deed to the plaintiff. This shews his own conviction on the subject, and serves to strengthen his brother’s title.

Upon the whole, I think the decree of the High Court of Chancery is right, and ought to be affirmed.

CARRINGTON, Judge. Concurred, that the decree of the High Court of Chancery should be affirmed.  