Opinion
09-02-1852
YOUNG'S adm'r & BOWYER v. MCCLUNG & als. SAME v. SAME. BOWYER v. HUGHART & al.
Johnson and Johnston, for the appellants. Price, for the appellees.
1. Pending a bill for an injunction to a judgment, and for the rescission of a contract for the purchase of land, on the ground of an incumbrance and defect of title, vendor removes the incumbrance and procures the title. The injunction is properly dissolved, but without damages, and with costs to the plaintiff.
2. The title having been obtained by a suit by the assignee of the purchase money, in which a conveyance was decreed; after the decree, but before the conveyance is made, a son of the vendee files a bill in another court, in which he falsely and fraudulently alleges that he had paid off the incumbrance on the land, and retained the lien, and with the fraudulent connivance of the vendor, who is insolvent, obtains a decree for the sale of the land to satisfy his pretended lien; and the land is sold and the sale confirmed. HELD:
1st. That the conveyance having been made in pursuance of a contract entered into long before the commencement of the suit by the son of the vendee, and in obedience to a decree made before the commencement of that suit, the deed had relation back to the date of the contract, or at least to the date of the decree directing it; and therefore the decree and sale in the son's suit is inoperative against the title of the vendee, and gives him no equity for an injunction and rescission of the contract.
2d. That the suit of the son having been commenced and prosecuted, and the decree obtained under circumstances of suggestion of falsehood and suppression of truth, of imposition practised on the court in which it was rendered, and of confederacy and collusion with the father, the vendor, the decree may, and must, if necessary for the protection of the vendor and his assignee, be held to be wholly inoperative as to them.
3d. But the purchaser under the decree in the son's suit having been conusant of the proceedings in the suits by the vendee to enjoin the purchase money, and of the assignee to procure the title, and being in fact bound as surety for that purchase money, and having purchased and permitted the sale to be confirmed without objection, is not entitled to be relieved from his purchase, or from paying his purchase money, though he acquires no valid title to the land purchased by him.
3. The whole facts of a case appearing from the records of other ended causes exhibited by plaintiff with his bill, the court may pass upon it upon a demurrer to the bill, without requiring the defendant to set out his defence in an answer.
4. Though a plaintiff coming properly into court to enjoin a judgment on account of defects in the title of the land for the purchase of which the debt was contracted, is entitled, upon the removal of the objections, to have the injunction dissolved without damages, and to have his costs; yet if he had another case depending where the same questions were pending, and where he could have had the relief asked for, by a proceeding in that case, he will not be allowed his costs.
On the 20th December 1825, George Hughart purchased of Daniel Boardman a certain tract of land lying in what was then a part of Greenbrier county, but is now a part of Fayette county, for the consideration of 200 dollars, of which one-fourth was paid, and three bonds, for 50 dollars each, were executed.
A deed was executed in the name of Daniel Boardman, to George Hughart by Joseph F. Caldwell, who assumed to be authorized, jointly with one Lewis Stuart, to act as attorney for said Boardman. The deed was recorded in Greenbrier county on the 21st December 1825.
On the 20th December 1825 George Hughart executed to Joseph F. Caldwell a deed of trust upon the land to secure the three bonds of 50 dollars each of unpaid purchase money, which was recorded in the county of Greenbrier on the same day. One of the bonds was paid; the two others payable three and four years from date, were unpaid at the date of the transactions next hereinafter mentioned.
On the 9th day of February 1828 George Hughart contracted to sell the said property to Mathias G. Young, for the sum of 500 dollars, payable as follows: One wagon and apparatus at 100 dollars 100 dollars to be paid on the 1st May 1828, 100 dollars on the 9th February 1829, 100 dollars on the 9th February 1830, and 100 dollars on the 9th February 1831. And Hughart entered into a written agreement with Young, binding himself to guarantee a right in fee simple to the land, at the receipt of the third payment for said land.
The wagon and apparatus were delivered; the payment of 100 dollars made on the 1st May 1828; and bonds executed for the three remaining payments, which bonds were assigned by George Hughart to William McClung.
When the bond, payable on the 9th February 1829, had fallen due, McClung brought suit upon it in the County court of Greenbrier, and recovered judgment against Young. Execution was issued thereon, and a delivery bond given by Young, which was forfeited.
In the month of January 1830, Young filed his bill in chancery in the Superior court of Greenbrier county, against George Hughart, William McClung, Lewis Stuart, Joseph F. Caldwell, Daniel Boardman and Hugh Ferry. In that bill, the facts above stated are set forth, except the defect in Hughart's title, which does not seem to have been then known to the plaintiff. In addition thereto, the plaintiff alleges that, at the time of the sale, George Hughart deceived him as to the extent of the boundaries of the land, and especially by representing it to embrace a valuable coal bank, which was afterwards discovered to belong to James McLaughlin and Hugh Ferry. That the land which was sold for 200 acres, fell short in quantity 25 or 30 acres. That he was also deceived by George Hughart as to the title of the land, which he supposed to be vested in him by legal conveyance, and to be free of encumbrance: whereas he had since ascertained that the land was encumbered, as already stated, under the deed of trust given by George Hughart. That George Hughart was insolvent or fast approaching that condition; and, by reason of his having assigned Young's bonds, was unable (as he requested might be done) to transfer them to the agents of Boardman in liquidation of the lien under the deed of trust. The bill prays an injunction to the judgment upon plaintiff's bond, compensation for the loss of the coal bank and deficiency in quantity of the land, indemnity against Boardman's lien for purchase money, and in case that indemnity cannot be obtained, a rescission of the contract of purchase, and to have his payments already made, refunded to him. An injunction was awarded.
A second bill was filed in the Greenbrier Circuit court between the same parties, which was sworn to by Young on the 13th January 1831. It sets out substantially the same facts as in the first bill, with these additions: that McClung had instituted suit and recovered judgment on the bond due 9th February 1830, and was prosecuting the same against Young's property, and that Young apprehended he would pursue the same course with the remaining bond which was to mature on the 9th February 1831. With this bill was filed the title bond or contract of sale from George Hughart to Young.
George Hughart filed an answer to this bill, which was sworn to 18th February 1831.
He admits the facts of the sale, the payments, and the assignment of the bonds to McClung. He admits the existence of the lien for the purchase money yet unpaid to Boardman, but avers that Young had notice of it. He denies that he practiced any deceit upon Young as to the limits of the land or the coal bank; denies that he is insolvent or approaching that condition, and denies that Young requested him to transfer the bonds to the agent of Boardman. He denies the right of Young to any relief in equity, and declares his intention to make a good title free of encumbrance, according to his contract.
A supplemental bill was filed by Young in the same cause, at what date does not appear, in which he alleges as a fact discovered since the commencement of this suit, the entire absence of title in Hughart at the time of Hughart's sale to him, inasmuch as he derived title only from the sale and conveyance of Caldwell, one of two joint agents; and he then alleges the death of Boardman, and also the death of Lewis Stuart, to whom jointly with Caldwell Boardman had given the power of attorney; and prays that his contract of purchase be rescinded, and the purchase money refunded.
William McClung filed an answer, which was sworn to on the 11th January 1840.
He admits the assignment of the bonds to himself, which he asserts that he received without knowledge of any objections on the part of Young; questions the fact of Young's alleged ignorance at the time of his purchase, referring to the answer of George Hughart on that subject; insists on the implied notice to him from the record of deeds; insists that the title from Boardman to George Hughart, if not well conveyed by Caldwell, has been confirmed by the implied acquiescence of Boardman since that time; and avers that the lien in favor of Boardman by the trust deed has been fully paid off and discharged. The evidence of the payment is filed, and is as follows:
" Charles Hughart paid to me as the agent of Daniel Boardman, the amount of three bonds executed by George Hughart to Daniel Boardman for 50 dollars each; the said bonds being part of the purchase money of the tract of land of 200 acres on the turnpike road in the county of Fayette, adjoining the lands of Richard F. Tyree. To secure the payment of said bonds, said George Hughart executed a trust deed on said land; the whole purchase money was 200 dollars; and the three bonds paid by Charles Hughart was the balance remaining unpaid; and on the payment being made by Charles Hughart, I endorsed a receipt on the trust deed which was delivered to said Charles Hughart; the amount paid was about 170 dollars, and paid, I think, about October 1836.
John A. North.
October 17th, 1842.
A cross bill was filed in this cause, at what date does not appear, by William McClung, referring to the foregoing proceedings, and seeking to get in the title outstanding in Boardman's heirs or devisees. He files with it a copy of the deed executed by Caldwell in the name of Boardman to George Hughart; and proposes to file the power of attorney, which is not done. He alleges that Daniel Boardman died leaving devisees and heirs at law who are nonresidents. He prays that Young and George Hughart may be made parties defendants, together with the widow and devisees and heirs at law of Daniel Boardman, and that a decree may be made directing a conveyance of the title from Boardman and those claiming under him.
On the 19th day of October 1842, a decree was made by the court that John McPherson, who was appointed a commissioner for that purpose, should execute a deed of conveyance, with special warranty to George Hughart, on behalf of the representatives and heirs of Daniel Boardman; that George Hughart should convey with general warranty to Young; and that upon the execution of these deeds the injunction granted to Young should be dissolved without damages. The decree also gave Young his costs against George Hughart and McClung, and gave McClung his costs against George Hughart.
After this time Mathias G. Young filed a bill in the same court, which is sworn to on the 1st day of April 1845, and upon which it seems the injunction was reinstated. The bill restates substantially and refers to all the proceedings heretofore detailed, with the following matters in addition. It states that, in conformity with the decree of the 19th October 1843, Joel McPherson as commissioner did convey the title of Boardman's heirs to George Hughart by deed dated 11th January 1843; and George Hughart conveyed to Young by deed dated 16th March 1843. It states further that prior to the execution of the said deeds in conformity with said decree, one Charles Hughart, the son of the said George, through whose hands the money due to Boardman had been paid to John A. North, filed a bill in chancery in the Superior court of Fayette county against his father, the said George, and Joseph F. Caldwell: that in the said bill the said Charles alleged that he had himself advanced the money to pay off that lien, and retained the trust deed as a security: that he claimed the right of substitution to the original cestui que trust for the money so advanced: that, at the April term of said Fayette Superior court in 1844, a decree was rendered in favor of Charles Hughart, directing a sale of said land for his benefit: that, on the 11th July 1844, the sale was made by the sheriff of Fayette under the said decree, and John Bowyer became the purchaser; and that the sale was confirmed at the September term of said court in 1844.
The bill alleges further that George Hughart, who was a party defendant to this suit of Charles Hughart, and duly served with process, fraudulently neglected to defend the same, but permitted the bill to be taken for confessed, and his title to be thus sold to a third person; whilst, by furnishing the receipt of John A. North in the suits pending in question, already described, he induced the court to believe that the lien was removed, and to decree a dissolution of the injunction granted to Young on that account. That by this means Young was to be compelled to pay the purchase money to McClung, assignee of George Hughart, whilst the title of George Hughart for the land was to be conveyed to a third person, John Bowyer, the purchaser, under the decree obtained by Charles Hughart. And against this wrong the present bill of Young asked relief; charging that George Hughart was utterly insolvent, and unable to repay what he had already received of Young, and praying a rescission of the contract. This last mentioned bill is filed against George Hughart and William McClung. It is stated that the injunction was reinstated therein; but the further proceedings do not appear in the record.
During the pendency of these various suits in Greenbrier Superior court, a suit had been instituted in the Superior court of Fayette county, arising out of the same transactions.
On the 2d of April 1836, John Bowyer and Mathias G. Young filed a bill in chancery in the Superior court of Fayette county against George Hughart, William McClung, Daniel Boardman, Lewis Stuart and Joseph F. Caldwell. This bill is almost identical with the first bill filed in the Superior court of Greenbrier, and refers to the proceedings in Greenbrier as exhibits to be filed.
But, in addition to these proceedings, it alleges, as the ground of an application to the court in Fayette county, that McClung had proceeded (notwithstanding the injunction in Greenbrier) to bring suit in the Superior court of Fayette county against Mathias G. Young upon the third bond, which fell due on the 9th February 1831; that he had recovered judgment thereon; and that Young had executed thereon a forthcoming bond with John Bowyer as security, which had been forfeited and judgment rendered thereon at the last preceding term of the said court. Against this judgment the plaintiffs prayed to be relieved upon the same grounds of equity as those relied on in the original bill in Greenbrier.
An amended or supplemental bill was afterwards filed in this cause, in which the claim for relief on account of the deficiency of land, or at least on account of the boundaries thereof not embracing the coal bank is abandoned. The bill, however, insists upon all the other grounds of relief asserted in the suits in Greenbrier; it then traces the history of the suits in Greenbrier up to the final decree of the 19th October 1842, and details the history of the suit brought in Fayette by Charles Hughart to be substituted for Daniel Boardman in the deed of trust from George Hughart, up to the confirmation of the sale in September 1844.
William McClung filed his answer to these bills, in which he sets up and relies upon the same defence substantially as that contained in his answer to the bills in Greenbrier down to the date of that answer. But he alleges, further, the order of the Greenbrier court of the 19th October 1842, and the execution of the deeds in pursuance thereof by Joel McPherson as commissioner, to George Hughart, and by George Hughart to Mathias G. Young; and relies upon these proceedings as a conclusive bar to the plaintiffs' further prosecution of their suit.
The deeds from Joel McPherson and George Hughart are filed as exhibits with this answer.
On the 3d of September 1846 the death of the plaintiff Young was suggested on the record; and the defendant McClung demurred to the amended and supplemental bill.
On the 3d of April 1848 the cause came on for a final hearing. The suit was discontinued as to Mathias G. Young, not having been revived by his representative, and as to Young the injunction was dissolved and the bill dismissed.
The court then proceeded to consider the case as to the plaintiff Bowyer, and sustained the demurrer, dismissed the bills, and ordered that the defendant McClung should recover his costs of the plaintiff.
The record of the suit of Charles Hughart against George Hughart and Joseph F. Caldwell in the Superior court of Fayette county, was filed in this cause. In that case one of the defendants Caldwell, answered that he had no interest in the case, being a bare trustee. The other defendant, George Hughart, suffered the bill to be taken as confessed. No other person was made defendant to the proceeding, and the application of William McClung to be admitted as a defendant was opposed by the plaintiff and denied by the court. There was no evidence to support the allegations of the bill. The payment of the money to North as agent for Boardman, was proved by the following endorsement on the deed of trust:
October 14th, 1836.
Received of George Hughart, by the hand of Charles Hughart, 169 dollars 50 cents, the amount now due on the within deed of trust. (The balance having been heretofore paid.)
Given under my hand the day above written.
John A. North,
Att'y for Daniel Boardman's Ex'ors.
It was upon this evidence, in the absence of any defendant interested to oppose the claim, and under these circumstances, that Charles Hughart was enabled to obtain from the court the decree in his favor. The decree and the proceedings therein are already sufficiently detailed.
On the 22d of January 1849, Joel Edins, administrator of Young and John Bowyer, presented to the judge of the Circuit court of Fayette county a petition or bill of review, praying that the decree made on the 3d day of April 1848 in the case in that court, in which Young in his lifetime and Bowyer were plaintiffs, and McClung and others were defendants, might be reviewed and corrected; that the injunction awarded them in that case might be reinstated until the cause should be finally heard; and that they might have the relief prayed for in their supplemental bill, or such other relief as the nature of the case demanded. And they made the record in said cause a part of their petition and bill of review. The petition was granted; and the cause came on to be heard on the 3d of April 1849, when the court was of opinion that the injunction was prematurely dissolved without the suits being revived against the administrator of Mathias G. Young deceased, or a rule taken against the said administrator to show cause why the said injunction should not be dissolved unless so revived. And it was therefore decreed that the said decree be reversed and annulled, with the costs of the petition; and by consent the cause was revived in the name of Edins, administrator of Young; and by like consent and for reasons appearing to the court it was transferred to the Circuit court of Greenbrier county to be further proceeded in to a final decree.
Prior to the decree of the 3d of April 1848, made in the above mentioned cause, viz: in the month of March 1847 Edins, as administrator of Young and John Bowyer, filed their bill in the Circuit court of Greenbrier county against William McClung and George Hughart's administrator, detailing all the transactions and legal proceedings up to that time substantially as hereinbefore given, and praying for an injunction against McClung, and a decree to have so much of the purchase money as Young had paid to George Hughart refunded. To this bill McClung demurred.
On the 23d of October 1849, the two causes of Young's administrator, and Bowyer against McClung and others came on to be heard together, when the court sustained the demurrers of the defendant McClung to the amended and supplemental bill in the first and to the bill in the last cause, dissolved the injunctions, and dismissed the bills with costs.
In November 1849, John Bowyer filed his bill in the Circuit court of Fayette county, in which he recapitulated so much of the statement hereinbefore made as was necessary for an understanding of his case, and exhibited therewith the records of all the causes before mentioned. He alleged in addition that he became the purchaser of said land at the sale for the benefit of Charles Hughart for the sum of 256 dollars 66 cents, payable in installments of 86 dollars 22 cents each, at six, twelve and eighteen months respectively; that he gave his bonds with security for these several installments, payable to the then sheriff of Fayette county, John Guinn; that suits were afterwards instituted on these bonds in the name of the said John Guinn for the use of Charles Hughart, and judgments recovered thereon, one against Hiram Hill, plaintiff's surety, and two against plaintiff himself; that executions had been issued, forthcoming bonds given and forfeited; and that he had determined to resist the collection of the same for two reasons:
1st. On account of the entire defect of title, to be derived under the decree in favor of Charles Hughart, for want of proper parties, and for want of jurisdiction in the court by which it was rendered. And 2d. On account of the fraud and dishonest combination between Charles Hughart and George Hughart, by means of which the decree was obtained.
Plaintiff further alleges the death of George Hughart; that he died notoriously insolvent, and the administration of his estate by Charles Hughart; and he made the said Charles, both in his own right, and as administrator of the said George and the said John Guinn, parties defendants to the bill.
The bill prayed for an injunction against the said judgments until the hearing of the cause, and for a perpetual injunction against the judgments recovered for the benefit of Charles Hughart, and against any further proceedings upon the decree in his favor under which the sale was made; that said decree might be pronounced fraudulent and void; that the land in question might, at a proper time, be decreed to be sold for the satisfaction of the judgment against the plaintiff, for the purchase money due from Young; and that the court would grant other and general relief. An order, granting the injunction against all further proceedings upon the three judgments and the executions thereon, was granted on the twentieth November 1849.
On the 16th day of May 1850, the defendant Charles Hughart filed his answer. He admits the pendency of the suits mentioned in the bill, relies on the validity of the proceedings therein, and denies the plaintiff's right to question them. He denies that he could be in any wise affected by the suits of Young v. Hughart, McClung et als.; insists that he did procure the money to pay off the deed of trust, at his father's instance, to the agents of Boardman; that he was to retain and did retain the deed of trust and bonds for his own indemnity; and that he had never been repaid his advances.
He further insists, that as the title was conveyed by order of Greenbrier Superior court, by Joel McPherson, commissioner, to George Hughart on the 11th July 1843, which was during the pendency of the suit of Charles Hughart to enforce his lien, it was competent for the Fayette Superior court to decree the sale of that title in the latter suit; but that whether a good title could be made under that decree to the plaintiff or not, is immaterial; that he the said Charles was not a warranter of the title; that the plaintiff bought at his own risk; that the maxim of caveat emptor applied to him, and he was not entitled to equitable relief. He admits the insolvency of his father George Hughart deceased. He denies all fraud. And he denies and pleads to the jurisdiction of the court.
On the 10th day of September 1850 the following decree was rendered: " Upon the motion of the defendant Hughart, it is ordered that the injunction hereinbefore awarded to the plaintiff restraining the collection of the judgments at law in the bill mentioned, be and the same is hereby dissolved.
On the petition of the plaintiffs respectively, this court granted them appeals from the decrees of the 3d of April 1848 in the first, and of the 23d of October 1849 in the first and second causes, and of the 10th of September 1850 in the third cause.
Johnson and Johnston, for the appellants.
Price, for the appellees.
OPINION
LEE, J.
It appears to this court that the several grounds of objection successively taken by the intestate of the appellant Edins, and upon which he sought to arrest the collection of his bonds for the purchase money of the land bought of George Hughart and assigned to the appellee McClung, prior to the decree of the 19th of October 1842, on the original bill of the said Young against George Hughart and others, and the cross bill filed in that cause by the appellee McClung, were either unsupported by proof or successfully removed by the measures adopted by the parties interested, as disclosed by the record of said cases. The loss of a portion of the land, including a valuable coal bank, by reason of an outstanding paramount title, was wholly unsupported by proof; and in fact the equity set up in the original bill upon that foundation was not relied upon by the said Young in his supplemental bill. The encumbrance which it was charged rested upon the land by reason of the vendor's lien for the unpaid balance of purchase money due to the said Boardman from George Hughart, Young's vendor, was effectually removed by the payment of that balance by the said Charles Hughart for and in the name of his father, to John A. North, the agent of the said Boardman, in October 1836. And the difficulty which had been interposed, founded upon the defective character of the conveyance from Joseph F. Caldwell, as the agent and attorney in fact of the said Boardman, for the land in controversy to George Hughart, was met by the cross bill filed by William McClung convening the said Young, George Hughart and the executors and heirs at law of the said Boardman (who had in the mean time departed this life) before the court, with a view to obtain by its decree a new and perfect conveyance of the legal title to the land from the heirs of the said Boardman to the said George Hughart, and through him to vest the same in the said Young. And all the questions which had been raised by the said Young in his original and amended and supplemental bills touching his obligation to complete the contract for the purchase of the said land from the said George Hughart, and to pay the bonds given by him for the purchase money therefor, which had been assigned to the said McClung, must be regarded certainly, as between the said Young on the one hand and the said George Hughart and McClung on the other, as finally and forever settled and adjudicated by the decree of the 19th of October 1842. That decree affirmed that the alleged loss of part of the land, including the coal bank, by reason of an outstanding paramount title thereto, was not sustained by proof; and that if it had been proven, it was a claim sounding purely in damages, and not the subject of relief in a court of equity; and that the clouds which rested upon the title to the land by reason of the matters alleged in the bills had been removed, and that a good title could then be had to the same, for which due provision was thereby made.
It further appears to this court whether the appellant Bowyer, the surety of the said Young in the forthcoming bonds given by him upon the judgments upon his three bonds, for the purchase money of the said land, assigned to the said McClung, not being a party in either of the causes in which the decree of the 19th of October 1842 was pronounced, was or was not bound by that decree, is a question not material to be decided in these causes; because if it be affirmed that the said appellant Bowyer did not so stand in privity with his principal Young, by virtue of such his suretyship as aforesaid, as to be concluded by the decree of the 19th of October 1842, even in the two cases commenced and prosecuted by him conjointly with Young, and after his death with his administrator, who were concluded by that decree, yet it appears that the original and supplemental bills of the said Bowyer and Young, filed in the Circuit court of Fayette, and subsequently transferred to the Circuit court of Greenbrier, and the original bill filed by the appellants Bowyer and Young's administrator, in the Circuit court of Greenbrier in March 1847, (which constitute the two cases in those names now in judgment,) exhibit copies of the proceedings of the case of the said Young, and the cross bill of McClung, which resulted in the decree of the 19th of October 1842, and also of the case of Charles Hughart against the said George Hughart and Joseph H. Caldwell, and they are expressly made part and parcel of these cases. Thus the court on the hearing of these causes, on the 23d of October 1849, had all the proceedings in the other causes before it expressly made part of these causes by the appellants Bowyer and Young themselves, presenting all the facts and circumstances of the whole case, and was called upon to decide as between Young and Bowyer on the one hand, and George Hughart and McClung on the other, the same questions which had been determined by the decree of October 1842, between the latter and the said Young, together with another question presently to be noticed upon the same state of facts and proofs, though presented in a somewhat different state of pleadings; and if the court was right in its adjudication of those questions by its decree of the 19th of October 1842, as in the opinion of this court it was, it did not err in coming to the same conclusions in the decree of the 23d of October 1849. It is true these causes were heard in part upon a demurrer to the amended and supplemental bills in the one case, and a demurrer to the original bill in the other; and it may be said that those bills upon their own allegations showed ample equity, and a proper case for relief, and that the demurrers therefore should have been overruled and the defendants put to answer as to the facts. But considering the allegations of these bills in the connections which they themselves establish with the other causes, and as illustrated by all the facts and circumstances of the whole controversy thus invoked into these causes, it appears to this court that the whole case might have been as safely and correctly passed upon by the court, and the legal effect of those facts and circumstances as accurately perceived and determined as if the same had been presented to the court by full answers, stating all the facts again in terms.
Thus in effect it appears to this court that after the decree of the 19th of October 1842, there remained for discussion between these parties but the single question presented by the claim of Charles Hughart, to be substituted to the rights of Boardman and his lien upon the said land, by virtue of the payment made by him to North, the agent of Boardman, of the balance of the purchase money due from George Hughart in October 1836. And it appears to this court that this claim of the said Charles Hughart was without any just foundation whatever; that the said payment made by him to North was for and in the name and behalf of his father, the said George Hughart, and for the very purpose of satisfying the debt due to the said Boardman, and extinguishing the lien which he might otherwise assert upon the land; and thus facilitate the collection of the bonds of Young, which had been assigned by his father to the said McClung. And that therefore no lien was created by subrogation or otherwise in favor of the said Charles Hughart, upon the said land, by reason of such payment, at least as against the said Young, the purchaser, and McClung, the holder of the bonds assigned by the said George Hughart. And thus as the said Young could successfully resist any attempt on the part of the said Charles Hughart to set up any such lien, the mere claim on his part did not constitute any sufficient ground for the interference of the court of equity to stay the collection of the purchase money.
It further appears to this court that this claim of the said Charles Hughart to a lien upon the said land for the amount of purchase money paid by him to North, was in no sort established as against the said Young and the said McClung, nor in any degree strengthened by the bill filed by him against the said George Hughart and the said Joseph H. Caldwell to assert said lien, and the decree pronounced in his favor for sale of the land, on the 4th of April 1844. To this cause the said Young and McClung were no parties, and they could not be bound by the acts or omissions of the said George Hughart after the sale of the land by him to the said Young, and after his assignment of Young's bonds to McClung, or by the decree which the said Charles Hughart was thereby enabled to obtain. The record of this decree as against them, could only serve to prove the fact that such decree had been rendered and the legal consequences of that fact, and was not evidence of its legal antecedents or the facts or rights in virtue of which it was pronounced. It was as it respects them, res inter alios acta. And thus it created no other or better equity in favor of the said Young upon which to resist the collection of the purchase money claimed by McClung, than did the naked and unfounded claim of Charles Hughart unaided by a bill or a decree. It is true it does appear that the deed from the commissioner Joel McPherson to the said George Hughart, and that from the latter to the said Young for the land in question, were both executed after the institution of the suit of the said Charles Hughart and during its pendency; and it may be said that the said Young quoad that suit must be regarded as a pendente lite purchaser, and as taking the land subject to the decree to be pronounced in that cause. But it is to be observed that although these deeds were made after the suit of Charles Hughart had been commenced, they were executed in virtue of contracts made long anterior, passing the equitable title, and of a decree of a court of competent jurisdiction giving effect to and enforcing those contracts, and that that decree directing those deeds to be executed, was pronounced before the institution of said suit, assuming, although the record does not show the precise time, that the bill of the appellant Bowyer and the answer of Charles Hughart thereto, correctly state that Charles Hughart's bill was filed in November 1842. It may therefore, with great reason and justice, be insisted that the deeds to George Hughart and Young, when executed, had relation back to the dates of the respective contracts in virtue of which they were decreed, or at least to the date of the decree, and that the said Young is not therefore to be affected by the consequences attending a purchase pendente lite in other cases, but is to be held entitled in equity to protection against any claim set up on that principle under Charles Hughart's decree.
But there is another view in which, as it appears to this court, the said Young could successfully resist any pretensions set up against said land by virtue of Charles Hughart's decree. Charles Hughart's suit was, as disclosed by the facts in evidence in these cases, commenced and prosecuted, and the decree obtained, under such circumstances of suggestion of falsehood and suppression of truth, of imposition practised on the court by which it was rendered, and of confederacy and collusion with the defendant George Hughart, that the said decree may and must of necessity, for the protection of the rights of Young and McClung, be held wholly inoperative and ineffectual as to them. George Hughart, in his answer to Young's first Greenbrier bill, admits that there was a balance of purchase money due from him to Boardman, but states his wish and intention to discharge it in due time, so as to secure a good title to the complainant, and repels the charge made in the bill that he had ever intimated a contrary intention; and he denies that Young had ever requested him to pass over his bonds for the benefit of Boardman. Charles Hughart, in his answer to Bowyer's bill, admits that he was instrumental in aiding his father to pay off the debt due Boardman, and he took from North a receipt endorsed on the deed of trust purporting that the money had been received of George Hughart, transmitted through or by the hands of Charles Hughart. It is clear that he knew of the pendency of the suits in Greenbrier, and that the object of paying the money to North was to settle the difficulty by reason of this outstanding balance of purchase money, and show his father entitled to a clear title to the land; and this object he actively aided to accomplish. For upwards of six years after he had acquired his alleged right by substitution, and until after the object of getting rid of the Greenbrier suits and relieving his father from any liability on his assignment of the bonds to McClung had been accomplished by the decree of the 19th of October 1842, or until such a liability had become of no consideration by reason of the insolvency of the said George Hughart, he remains, as far as is disclosed by the records in these cases, perfectly silent upon the subject of his supposed claim; but very shortly after this decree was rendered he files his bill alleging that the payment made by him was on his own account, at the request of his father, but with an agreement that he was to hold the deed of trust for his indemnity. To this bill he makes neither the executors of Boardman, to whom the debt would have been payable if not paid, and to whose rights he claimed to be entitled by subrogation, nor his heirs at law, in whom the legal title to the land still remained, nor the said Young, the purchaser in possession, nor the said McClung, the assignee of Young's bonds, parties defendants, though the only persons really interested; those whom only he did name as defendants, George Hughart and Joseph Caldwell having no interest whatsoever that could prompt them to make any defence. Of the history of the whole affair and of the facts showing the propriety of making the persons named parties defendants in the cause, it cannot be supposed for a moment he was not fully conusant. Indeed he does not deny in his answer knowledge of any of them. George Hughart, though conusant of all the facts, makes no answer or disclosure in the cause. Though he had taken the benefit in the Greenbrier cases of the payment to North as a payment made by himself with money transmitted by or through Charles Hughart, and serving to extinguish the debt and the lien on the land, and though he could have shown who the parties really interested were, yet he remains profoundly silent, and the said Charles Hughart is enabled to obtain a decree for the amount of his claim and for a sale of the land. But considering all the facts and circumstances disclosed by the record attending the institution and prosecution of that suit, it appears to this court that the claim of the said Charles Hughart to a lien on said land could not in good faith be preferred, that it was without just foundation, that there was concealment of facts which he ought to have disclosed and suggestion of matters not founded in truth, that there was concert of action and collusion between him and the said George Hughart, and that the persons really interested who should have been made parties were improperly omitted; and that, therefore, the decree thus obtained cannot in equity and good conscience be permitted to affect any who might be aggrieved and defrauded thereby; but must be, whenever and wherever necessary to protect the rights of the said Young and McClung, held invalid and ineffectual. That a decree obtained by fraud, imposition or collusion, will be held ineffectul and relieved against for the benefit of those who were defrauded, is a doctrine well sustained by authorities. Richmond v. Tayleur, 1 P. Wms. 734; Barnesly v. Powel, 1 Ves. sen. 119; Reigal v. Wood, 1 John. Ch. R. 402; Bradish v. Gee, 1 Amb. R. 229, 1 Madd. Chy. 300. And in the case of Gifford v. Hort, 1 Sch. & Lef. 386, it was declared by the lord chancellor to be a fraud and imposition upon the court to fail to bring parties known to be interested before the court, and that a decree under such circumstances would not have any effect to defeat the rights of such parties. Thus it appears to this court that the said Young had full and ample means of defence against any claim that might be set up to or against the land purchased by him of George Hughart, founded on the decree of Charles Hughart, whenever and in whatever form preferred; and that the mere possibility that some such unfounded claim might be set up constituted no sufficient ground for the interference of the court to delay the collection of the purchase money, which had been assigned to the said McClung.
It further appears to this court that notwithstanding the decree in favor of Charles Hughart for the sale of said land may and must be held invalid and ineffectual as against Young and McClung, for the reasons which have been assigned, yet it by no means follows that the same is in like manner to be held void as against the appellant Bowyer; but that whether he can now be relieved against the consequences of his own voluntary act in purchasing said land at the sale under that decree, by reason of the character imputed to Charles Hughart's suit, is a question admitting of and requiring a different consideration. In England it seems that where lands are decreed to be sold by the Court of chancery, the court in most instances undertakes to sell a good title, and therefore it is common to make a reference, to see if a good title can be made to the purchaser; and he will not be compelled to take one that is defective. Marlow v. Smith, 2 P. Wms. 198; Shaw v. Wright, 3 Ves. R. 22; Coffin v. Cooper, 14 Ves. R. 205; Coop. Rep. 138; Sugden on Vend. 105, § 21; 113, § 47; Daniels' Chan. Pr. 1455. In Virginia the course has been different. Here, as to all judicial sales, the maxim caveat emptor strictly applies. The court undertakes to sell only the title, such as it is, of the parties to the suit, and it is the duty of the purchaser to ascertain for himself whether the title of these parties may not be impeached or superseded by some other and paramount title; and if he have just grounds of objection for want or defect of title, he should present them to the court before the confirmation of the report of the sale. Threlkelds v. Campbell, 2 Gratt. 198; Worsham v. Hardaway, 5 Gratt. 60. The same rule would seem to be recognized in Maryland. Brown v. Wallace, 4 Gill. and John. 479; Ridgly v. Gartrell, 3 Har. and McH. 440; The Monte Allegre, 9 Wheat. R. 644; Finley v. U. S. Bank, 11 Wheat. R. 304. And it is not only the duty of the purchaser to look to the title of the parties in the cause, but also to see that all who have an interest in the property and whose rights ought to be bound by the decree, have been made parties, and have been so concluded by the decree under which he buys. Brown v. Wallace, 4 Gill. and John. 479, opinion of Bland, chancellor; S. C., 2 Bland's Ch. R. 585, 600; Bonnett v. Hamill, 2 Sch. and Lef. 577. The Court of chancery employs its officer to investigate titles, but does not warrant them. Toulmin v. Steere, 3 Meriv. R. 223, Lord Chancellor Eldon's opinion. Now if the maxim caveat emptor should apply in the ordinary case of a judicial sale in which the purchaser might or might not have knowledge of the facts not disclosed in the case in which the decree was rendered, but which might be necessary to determine who should be the proper parties, and whether any and what title would pass by the sale, it should certainly be applied with still greater stringency where it appears that the purchaser must have had conusance of all the facts and circumstances within the particular case and without, which were necessary to determine the operation and effect of the decree. If ordinarily a clear and strong case should be made to entitle a purchaser to relief against his contract under a judicial sale, after the report of sale has been confirmed by the court, the appellant Bowyer would seem to be urgently called on to make out such a case here. It is insisted that he does make out such a case by showing that the decree under which he bought was obtained by fraud and collusion, and is therefore void; and he alleges that he was ignorant at the time of his purchase of the fraudulent character of the said decree, and has only since discovered that he can acquire no title under said purchase; and thus it is intended to be inferred why he did not object to the commissioner's report of the sale. It appears that Charles Hughart's decree was rendered on the 4th of April 1844; the sale was made on the 11th of July 1844, and on the 2d September 1844 was reported to the court, together with the bonds of Bowyer and his sureties for the purchase money, and in the regular course of business was confirmed without objection on the part of Bowyer, and a deed directed to be made to the purchaser, and leave given the complainant to withdraw and collect the bonds. The said Bowyer had become the surety of the said Young in forthcoming bonds on all of the three judgments recovered against him by the said McClung, and thus had become liable for the whole of the unpaid purchase money for the land, with interest and costs. As far back as October 1835, he knew of the pendency of the two injunction bills which had been filed by Young in the Circuit court of Greenbrier, to stay proceedings on the two judgments recovered against him in that county, and to obtain relief against the contract made by him for the purchase of the land of George Hughart; for in that month the bill filed by him and Young conjointly, in the Circuit court of Fayette county, is prepared and sworn to, for the purpose of staying proceedings on the third judgment, the Fayette judgment, upon the grounds and equities therein set up; and in that bill he refers to the two Greenbrier injunctions and the proceedings therein, and makes them part thereof. An injunction is obtained on that bill to the Fayette judgment; and the case is then suffered by Young and Bowyer to sleep upon the docket of the Fayette court until after the decree of the 19th of October 1842, dissolving the injunctions and dismissing the bills in the Greenbrier case. The grounds of equity set up in the Fayette injunction bill were the same as those alleged in the Greenbrier bills; and after they had been dismissed, and the supposed equities which they set up had failed, the said Young and Bowyer then filed a supplemental bill to their original bill in the Fayette court, setting up, as a new ground for relief against the contract for the purchase of the land, the alleged claim of Charles Hughart to a lien, and the decree which he had obtained for the sale of the land, the purchase thereof by the said Bowyer, and the confirmation of the sale. It is plain that the reason why the Fayette case of Young and Bowyer was suffered to sleep on the docket from April 1836, until after the decree of the 19th of October 1842 on the Greenbrier case, was that the parties were awaiting the decision in that case of the same questions and liabilities involved in the Fayette bill. Bowyer was liable for the whole debt as surety; he knew of the pendency of the Greenbrier bills, the object of which was to rescind the contract, and in effect thus relieve him of all liability; the land was in Greenbrier county till the formation of the county of Fayette, and until the same event, it may be inferred that both Bowyer and Young were citizens of Greenbrier county, and that they continued for some time after citizens of Fayette; the counsel prosecuting Bowyer and Young's bill in Fayette county, appears to be the same counsel who was prosecuting Young's injunction bills in Greenbrier; Bowyer was awaiting the decision in these, by which his liability might be wholly discharged; and under all the circumstances it would seem impossible to believe that he was not during the pendency of those cases kept duly advised by the counsel in all the cases, his own with the rest, of their progress, and upon their determination of the facts and circumstances which brought about so adverse a result, and which it might be expected would be followed by a similar result in the Fayette case, setting up the same equities and pretensions. It is not certainly shown, and can be but matter of inference, that Bowyer was apprised of the pendency of Charles Hughart's suit prior to the decree; but it is certain that he was apprised of the suit and the decree before and at the time of the sale of the land by the sheriff. And it has been shown that he must have been fully advised of all the facts and circumstances bearing upon Charles Hughart's claim and the state of the title to the land, by which he would be fully enabled, upon a proper examination of Charles Hughart's case, to ascertain the futility of his pretensions, the want of the proper parties to the cause, and the fraudulent character of his whole proceeding. Yet though deeply interested, because the decree subjected to sale the very land to which alone he could look for indemnity against his liability as surety of the said Young, in a debt then amounting, with interest and costs, to 600 dollars perhaps or upwards, he applies for no injunction, nor takes any other measure to arrest the sale, but encourages it by becoming a bidder, and at length becomes the purchaser himself, at the reduced price of 258 dollars 66 cents, and for that amount in installments he gives bonds and security, as required by the decree; the sale is reported to the court, and in the regular course of business confirmed by the court, without objection on his part upon any ground whatever. Shortly after this has been done, the said Young and Bowyer file their supplemental bill in the Fayette case, setting up the supposed loss and eviction of the land under Charles Hughart's decree and the purchase by Bowyer, and praying the court totally to rescind the contract between Young and George Hughart, to enjoin perpetually the judgment in that court for a part of the purchase money, and to decree in favor of Young for the amount which he had already paid upon the contract: and this was followed at intervals by two new original bills filed in the Greenbrier court, praying new injunctions to the two Greenbrier judgments, the first by Young in his own name, the other by Bowyer, and the appellant Edins as administrator of the said Young, who had in the mean time departed this life, and as alleged by Bowyer totally insolvent; and asking the same relief as in the supplemental bill filed in Fayette.
Now, the question at once presents itself, why did not Bowyer, if he was aware of the pendency of Charles Hughart's suit, take some steps to arrest a case, the object of which was to subject to another but unfounded claim, the very land to which alone he could look for indemnity against the heavy liability which he had incurred as surety for Young, who was wholly insolvent? Or if he was ignorant of the pendency of this suit prior to the rendition of the decree, why did he not seek by an injunction or otherwise to prevent a sale of the land till he could have an opportunity of contesting Charles Hughart's claim? Or having failed to adopt a measure of that kind, why did he encourage the sale by becoming a bidder, buy in the land himself, and suffer the sale to be confirmed by the court without objection of any kind? The ready and satisfactory answer, rendered altogether probable by the circumstances disclosed by the records, is that Bowyer did not deem it advisable or expedient to prevent a decree and a sale of the land, or a confirmation of the sale. He had become liable for the whole debt, amounting, with interest and costs of various suits, to upwards of 600 dollars. Young was in insolvent circumstances if living at the time of Charles Hughart's decree, or if dead, had died as Bowyer alleges, utterly insolvent: (Bowyer says Young died before Charles Hughart's decree was pronounced, and assigns that as one reason why resistance was not made to the proceeding; but this must be incorrect, because, after the confirmation of the sale, a bill was filed in the name of Young in the Greenbrier court, and sworn to on the 1st of April 1845, so that the death of Young must have occurred between that date and the 3d of September 1846, when it was suggested on the record:) all the grounds of equity previously set up against the enforcement of the contract had failed, as adjudicated by the Greenbrier decree, and it was no doubt expected that it would be followed by a similar decree in the Fayette case; and Bowyer must have seen or thought he saw in Charles Hughart's decree the material of a new and perfect equity, which might be set up against the enforcement of said contract, and a rescission thereof operating a release of his liability, so long in vain pursued, at length by this means likely to be accomplished. To arrest Charles Hughart's proceeding, or prevent a sale or its confirmation by the court, would of course destroy this nascent equity in the germ. He carefully abstains from doing either; and after the supposed new equity had become fully matured by the final decree confirming the sale and directing a deed to be made for the land, he loses little time in coming forward and setting it up, conjointly with Young as a complete answer to the claim for the purchase money, and for the completion of the contract. That ground of relief proves equally unavailing with those previously relied on, and upon its utter failure, as pronounced by the decree of October 23d, 1849, and immediately thereafter, to wit, on the 24th of November 1849, and upwards of five years after the confirmation of the sale under Charles Hughart's decree, he turns around and files this bill, seeking to be relieved from his purchase of the land at that sale. This bill was sworn to on the day before the decree of the 23d of October 1849, but seems to have been evidently prepared in anticipation of the result which it announced.
It appears therefore, to this court, considering the conduct of the parties and all the circumstances disclosed in these cases, that the appellant Bowyer was not only informed of the history and progress of the Greenbrier cases, but that he was also most probably apprised of the pendency of Charles Hughart's bill and of its nature and objects; or if ignorant of these before the decree was pronounced, yet that he was made aware of that decree in full time to have taken measures to protect himself against it; and failing in so doing, and bidding in the land himself, if he desired to assail the decree and avoid its effect as to himself, it was his duty to bring the subject before the court upon the return of the report of the sale at the latest, and to seek his discharge from his purchase on the ground that he could get no title; at that time, being in possession, as it appears to this court, of all the facts and circumstances which would be required to expose the fraudulent character and utter futility of Charles Hughart's pretensions. And it further appears to this court, that no new matter not known to the said Bowyer at that time or which he might not most readily have learned by proper enquiry, has since come to his knowledge, excepting that disclosed by the decree of the 23d of October 1849, pronouncing the utter insufficiency and failure of the new equity erected upon the decree of Charles Hughart, to serve the purpose of offering effectual resistance to the completion of the contract and the payment of the purchase money. That whoever were or might have been deceived and defrauded by that decree, the appellant Bowyer was not of the number; and that there has been on his part, if no active participation in the proceedings in Charles Hughart's suit, at least such passive acquiescence in the same, and such readiness manifested to turn them to account if they could be rendered available, to defeat McClung's claims and relieve him of his liability, and such a standing by during their consummation by the sale and its confirmation, with a full knowledge of the facts and circumstances of the whole case, amounting to the grossest laches, if not premeditated with a particular view to the use that might be made of them, as must deny him the aid of a court of equity in the form now invoked; that he has not made out such a case as should induce a court of equity to depart from the rule applying the principle of caveat emptor to all judicial sales, and denying relief against a purchase upon whatever ground of defect or want of title where the facts were or might have been known to the purchaser; but he suffers the sale to be confirmed without making them known to the court or raising any objection; and that however unfounded were the pretensions of Charles Hughart, yet that between him and Bowyer, the court should not interfere, but leave them to their rights and remedies at law; and that Bowyer must be held here to abide by the results of the venture made by him voluntarily and with his eyes open, in buying the very land that constituted the sole subject of his indemnity against his liability as surety for the said Young.
And it further appears to this court that the failure of the commissioner to make the deed to the appellant Bowyer conformably to the decree confirming the sale in the case of Charles Hughart, and of the court to put him in possession of the land, constitutes no sufficient ground to stay the collection of said Bowyer's bonds for the purchase money. He does not seek to rest the relief he asks on this ground. He repudiated the purchase as he alleges, when he discovered that he could not get a good title under the decree. It does not appear that he ever demanded a deed, or even that he was willing to receive one for the land from the commissioner, and give the required lien for the purchase money; but the contrary is to be inferred from the allegations of his bill. But it was not the intention of the court by its order, to make the execution of the deed a condition precedent to the payment of the bonds for the purchase money, nor did the terms of the sale make it such. The court directed the commissioner to make a deed and to require a lien on the land for the purchase money, and gave leave to the complainant himself to withdraw the purchaser's bonds and collect them. He was not therefore to be delayed in the receipt of the money decreed him by the failure of the officer of the court to obey its order by making the deed to the purchaser; and if he failed or neglected to perform that duty, it was the purchaser's business to apply to the court to compel him by attachment or otherwise. As to the possession of the land, no order was asked for by Bowyer to place him in possession, and none therefore made by the court. He was left to obtain possession by legal process, or if necessary, by an application to the court to enforce its decree if possession were improperly held by any one bound by it.
But the court is of opinion that inasmuch as Young and Bowyer had the right at the time they filed their bill in the Fayette court praying an injunction to the Fayette judgment, to apply to a court of chancery to stay the collection of the purchase money till the difficulties in relation to the title to the land should be removed, and as those difficulties were not removed and the said George Hughart placed in a situation to make to Young a good title until after the Fayette bill had been filed, the court, in dissolving the injunction in that case, should have declared such dissolution to be without damages, as had been done by the decree of the 19th of October 1842, as to the Greenbrier judgments. And for the same reason the said Young and Bowyer would have been entitled to recover the costs of the Fayette suit except that inasmuch as at the time they filed their bill in that case to obtain the injunction, there was a case or cases pending in the Greenbrier court brought by Young, involving the same controversy and setting up the same equities, they could have obtained the injunction they sought upon application to that court by petition, supplemental bill or otherwise, and it was a needless and improper multiplication of suits and of costs to institute a new and distinct suit in the Fayette court; but that though for this reason they were not entitled to recover the costs of the Fayette suit, yet costs should not have been decreed against them, but the bill in that case should have been dismissed without costs to either party.
As to the decree of the 3d of April 1848, it appears that it was in fact reversed and annulled by the decree of the same court, (the Fayette court,) pronounced on the 3d of April 1849, upon a petition of review filed by Bowyer and Young's administrator under the law then in force; so that nothing remains for this court to review in the decree of the 3d of April 1848, and it is unnecessary to express any opinion in regard to it.
The court is therefore of opinion that the said decree of the 23d of October 1849 is erroneous in omitting to declare the dissolution of the injunction in the case first named (that commenced in Fayette and transferred to the Greenbrier court) to be without damages, and also in decreeing the costs of that suit to the appellee McClung; and that to that extent it must be reversed with costs to the appellants, and a decree pronounced declaring such dissolution of said injunction to be without damages, and dismissing the bill in that case without costs in the Circuit court to either party; and that in all other respects the said decree be affirmed.
And the court is further of opinion that there is no error in the order of the Circuit court made on the 10th of September 1850, in the case of the appellant Bowyer against the said Charles Hughart and John Guinn dissolving the injunction that had been previously allowed, and that the same be affirmed with costs to the appellees.
MONCURE, J. dissented.
The decree in the first and second causes was as follows:
The court is of opinion that there is error in the said decree of the 23d of October 1849, in failing to express and declare that the dissolution of the injunction awarded in the cause first named, by the Circuit court of Fayette county, on the 2d day of April 1836, should be without damages; and also in this, that said decree awards to the said McClung his costs expended in that cause; this court being of opinion that as the complainants had just right to go into the Court of chancery to stay the enforcement of the judgment recovered in the Circuit court of Fayette county until the difficulties touching the title to the land purchased of George Hughart by the said Young should be removed, and those difficulties having only been removed after they had commenced their suit and obtained their injunction, the dissolution of the same should have been without damages; and that for the same reason, they would have been entitled to recover their costs in that suit, except that in the opinion of this court, a new original suit was unnecessary for the purpose of obtaining an injunction to the Fayette judgment, there being already at that time a cause pending in the Circuit court of Greenbrier, instituted by the said Young, setting up the same equities alleged in the Fayette bill, and involving the whole controversy concerning said land, and in which an injunction to the Fayette judgment might have been obtained until the settlement of the controversy, upon proper application by petition, supplemental bill, or otherwise; but though not entitled to recover costs in the Fayette case, yet that the costs of the defendants, or either of them, should not have been decreed against them. And the court is of opinion that there is no other error in the said decree of the 23d day of October 1849.
And the court is further of opinion, that the decree of the 3d of April 1848, having been in fact reversed and annulled by the order and decree of the same court, (the Circuit court of Fayette county,) pronounced on the 3d of April 1849, upon a petition of review previously filed and allowed, there remains in said decree of the 3d of April 1848 nothing for this court to review.
Therefore, it is adjudged, ordered and decreed, that the said decree of the 23d of October 1849, so far as it relates to the cause first named, (that removed from the Circuit court of Fayette to the said Circuit court of Greenbrier,) be reversed and annulled, and that the appellee William McClung do pay to the appellants their costs by them, in the prosecution of their appeal aforesaid, in this court expended. And this court, proceeding to pronounce such decree as the said Circuit court ought to have rendered, touching and concerning the said cause first named, it is adjudged, ordered and decreed, that the said injunction, awarded therein on the 2d day of April 1836, be and the same is hereby dissolved, but without damages, and that the bill in said cause be dismissed, but without costs to either party. And it is further adjudged, ordered and decreed, that said decree of the 23d of October 1849 be in all other respects affirmed.
And it is further adjudged, ordered and decreed, that as to the said decree of the 3d of April 1848 the said appeal be dismissed.
Which is ordered to be certified to the said Circuit court of Greenbrier county.