Opinion
11-01-1819
Jones v. Pilcher's Devisees
Upshur for the appellant. Stanard for the appellees.
In September 1801, a Bill was filed in the High Court of Chancery, by John Jones against the devisees of Edward Pilcher deceased, to obtain a conveyance from the defendants, of a tract of land in Stafford County, which the Complainant alleged he had, by a parol contract, purchased of a certain John Dalgan Attorney in fact of the said Edward Pilcher.
The Bill stated, that, by a power of Attorney, bearing date February 22d 1794, the said Dalgan was authorized to sell the land; that, upon the contract for the purchase, the plaintiff paid him seventeen pounds in part, and took his receipt, which, together with the said power of Attorney, was annexed to the bill as part thereof; that the plaintiff was always ready and willing to perform his part of the agreement, by completing the payment of the purchase money, & c.
The defendants by their Answer said, that they knew nothing of the power of Attorney spoken of in the Bill, and did not believe that such power was given to the said John Dalgan, who never was in possession of the land, and consequently never had given the plaintiff possession thereof; and that the seventeen pounds were received on a different account.
John Dalgan, who was also made a defendant to the Bill, supported by his answer the claim set up by the Complainant; declaring that he considered himself amply and fully possessed of the land under the power of Attorney from Edward Pilcher; that no other person was in possession; that, when he sold the land to the complainant, he transferred the possession to him, and always conceived him entitled to a conveyance.
It seems that the power of Attorney and Receipt, tho' referred to in the Bill, were not filed with it; but two depositions were taken, to prove that such power existed; that, by virtue thereof, Dalgan sold the land to Jones, gave him a title-bond, and directed a certain Chandler Cox, tenant of the land, to pay him the rents; and that the plaintiff paid Dalgan seventeen pounds in part of the purchase money.
In June 1809, Chancellor Taylor dismissed the Bill with Costs.
In September 1813, the plaintiff presented a Bill of Review, alleging that a decree would not have been pronounced against him, but for the unfortunate accident of the power of Attorney, and Receipt for the seventeen pounds, having been lost or mislaid by his Counsel, and not found until within the last month. This Bill was supported by the affidavit of Thomas R. Rootes, stating, " that the power of Attorney from Edward Pilcher to John Dalgan, bearing date the 22d day of February 1794, and the receipt of John Dalgan to John Jones for seventeen pounds, in part of land sold under the said power of Attorney, and bearing date the 15th March 1794, were delivered to the affiant by John Jones, prior to the drawing and filing the original bill in Chancery in the name of the said John Jones against Sarah Pilcher and others; and that the said power of Attorney and Receipt were lost or mislaid in office of the said Rootes, until within the last month, when they were discovered in a large law book in the said office." The power of Attorney and Receipt were also exhibited, and made part of the Record.
The defendants filed a general demurrer to the Bill of Review; which demurrer was sustained by Chancellor Nelson, (the cause having been transferred to the Superior Court of Chancery for the Fredericksburg District,) and the Bill dismissed with Costs; from which decree the plaintiff appealed to this Court.
Decree affirmed.
Upshur for the appellant.
Stanard for the appellees.
OPINION
By the Court.
Decree affirmed; but without prejudice to any suit the appellant may be advised to bring, to recover back the purchase money, alleged to have been paid by him, from the personal representatives of Edward Pilcher.