
    
      Samuel Hale, and three other children of William & Eliza Hale, vs. Thomas M. Grier.
    
    1. Defendant and bis co-obligor executed to tbe father of the plaintiffs, who were minors, three joint and several single bills, on one of which this action was brought. At the request of the father the bills were changed and made payable to plaintiffs. Defence — that they were given to secure the purchase money of a tract of fond sold by the father of plaintiffs to the obligors of the bills, or one of them; and that title to the land had not been conveyed to the vendee. On the same day the bills were executed, one of the obligors passed a receipt to plaintiffs’s father, .acknowledging a full compromise and settlement for himself and others. — A corresponding receipt was given by plaintiffs’s father, which was not produced, and some papers delivered up by him concerning the land. But whether the consideration of the specially sued on was a compromise of the right of the father in the land, or those of his children, was not clear from the testimony.
    2. The Court were of opinion that as it did not appear how far the obligors might have been benefited by the transaction, the contract not appearing to have been made upon any mistake of law, and the defendant being in possession without shewing any subsisting out-standing title that could be set up to his prejudice, the defence could not prevail.
    
      Before Wardlaw, J. at Georgetown, Nov. Term, 1843.
    Doctor William Hale, the father of the plaintiffs, in 1838 took, to secure the payment of $1,000, in three equal annual instalments, three joint and several single bills, of Thomas N. Britton and Thomas M. Grier, payable “to the children of William and Eliza Hale.” This was an action of debt upon one of these single bills, against one of the obligors.
    The defence stated and insisted on at the trial, was that the single bills were given in payment of the purchase money of a tract of land called Petersfield, which Dr. Hale had sold to the obligors of the bills, or one of them: and that title of the land had not been conveyed to the vendee. For the plaintiffs, in reply, it was said that a compromise was made of doubtful rights, and mutual discharges were thereon founded, and that the single bills were part of the adjustment then effected. The defendant rejoined that the compromise of his children’s rights could not be made by Dr. Hale.
    The testimony left the facts of the case in great uncertainty, and directions were given to the jury according to various suppositions of fact.
    It appeared that Mrs. Eliza Hale was the half sister of James M. Grier, dec’d — that the wife of T. N. Britton, T. R. Grier, and W. G. Grier, were children of James M. Grier; and that there had been some disputed sale of Dr. Hale’s property to Wm. G. Grier, now dec’d., and some contest between Dr. Hale and some of the Griers about negroes. But no attempt was made to shew in whom the title of Petersfield really was, and no explanation was given of the references made to James M. Grier.
    Dr. Hale was not guardian of his children, but an intemperate spendthrift. He visited Britton, saying on his way that he was going to sell Petersfield, and on his return that he had sold it. The land was well worth $1,000 — but not much more.
    Besides Dr. Hale and the two obligors, the only persons present at the bargaining were Samuel Grier, Senior, and Samuel Grier, Junior, of whom the latter heard only a part. Dr. Hale and the two Samuel Griers were examined as witnesses.
    At first notes payable to Dr. Hale were drawn, but at his request they were changed for the single bills before mentioned, that the money might be saved to the use of his family against his improvidence. On the same day,' and soon after the bills were executed, a receipt was signed by Britton, and handed to Dr. Hale, acknowledging that “upon full settlement,” Britton had received “from Dr. Hale full satisfaction to the heirs of W. G. Grier, deceased, for myself (himself) and Tho’s. R. Grier — this being a full compromise.” Some corresponding receipt was given by Hale to Britton — exactly what did not appear, as it was not.produced, but was said to be lost.
    Dr. Hale testified that the single bills were given for a compromise: that he gave up all the title he had to the land: that all parties supposed there was some right in his children, and he undertook to compromise it: that the right of his children, he thought, arose from the known ilisten t ion of James M. Grier to benefit them and not him : and that he gave up interests in exchange for what he received.
    The testimony of Sami. Grier, Sen, (confirmed so far as he heard by Sami. Grier, Jr.) was that the bills were given for Petersfield, although there was talk of a compromise, and receipts were exchanged after the bills were executed : that Hale did not agree to do more than give up all the papers concerning the land, which James M. Grier had held, and that he did return some old papers; that at the time of the contract the defendant, Thos. M. Grier, was in possession of the land, he having held it from the expiration of the year, after James M. Grier’s death, in all 4 years, sometimes jointly with the witness, and sometimes jointly with Thos. N. Britton, but under what right he held did not appear: that the opinion of all parties seemed to be, that Dr. Hale could not make good titles to the land, and when Britton wished him to make titles, he gave up the old papers, but would do nothing else.
    The presiding Judge charged the jury that in his judgment it was fair to presume that when the specialty sued on was executed, the thing for which it was given was either received or secured by some sure contract: that if the consideration was a compromise of Dr. Hale’s rights, then it had been received : if it was a compromise of the rights of his children, then they should not be deprived of what is perhaps an advantageous contract, before, by proper proceedings in Equity, they had an. opportunity to confirm or reject the bargain : and if the consideration was the land, then Dr. Hale’s agreement concerning it should have been in writing; and whether he undertook only to surrender old papers or to make sure titles, the remedy of the vendee was in Equity, which alone could do full justice.
    The jury found a verdict for the plaintiff, and the defendant appealed, on the grounds annexed.
    1. Because his Honor erred in charging the jury that though the bill sued on had been given for the purchase money of land, yet the obligees might recover without a conveyance or tender of title on the part of the vendor. 2d. Because his Honor erred in charging the jury that the possession of the land by the defendant precluded him from setting up failure of consideration in not having received a good title to the land in an action on the bill given for the purchase money — although he had not obtained possession under the contract of sale, but had been in possession for years before.
    3d. Because his Honor erred in not charging the jury, that if the bill had been given for a compromise of the infants’s rights by a father, he having no right to make such compromise, the mistake, whether of law or fact, was a good defence to an action on the bill.
    Mitchell, for the appellants.
    Harllee, contra.
   Caria, per

Butler, J.

The notes or single bills given by the defendant, may have been founded on a very good consideration, notwithstanding Dr. Hale had no good title in himself, and was unable to convey one for his children of the Petersfield tract of land to the defendant and his co-obligor.

It may have been, that he held in his hands papers and muniments of title that were of great importance to the obligors on this bill in securing and establishing their rights to the land, and that they could not have done without such papers. How far they have been benefitted by the transactions with Dr. Hale, does not appear ; whilst Hale may have lost nothing, they may have gained a great deal by the compromise.

It is probable they gave the note with a full understanding of their rights. At least it does not appear that their contract was made in reference to any mistake of the law. It seems rather to have been made to buy out a claim that Hale had asserted to the land, than with any view of acquiring a full legal title from him. It was certainly competent for them to make such a contract; and, as yet, I can see no good reason why they should not abide by it. The defendant is yet in the possession of the land, and for aught that we know may never be evicted or disturbed by a paramount title. He did not shew on the trial, that there was a subsisting, outstanding title that could be set up to his prejudice. Indeed, from what has yet appeared he may have a perfect title in himself, perhaps perfected by this very transaction with Dr. Hale. In a Court oflaw, all seems to be fair. If the defendant has any just cause of complaint, he must apply to another jurisdiction, where, in demanding justice from others, he may be compelled to do justice himself, by accounting for the rents and profits of the land, since he has had it in cultivation.

Motion refused.

Richardson, O’Neall, Rvans and Wardlaw, J J. concurred.  