THE first of these cases was a writ of error to the judgment of the circuit court of the district of Columbia, in an action of debt at common law brought by Auld, agent and attorney in fact for Dunlop & Co. against Hepburn and Dundas for 45,000 dollars, the penalty of the same article of agreement which are recited in the case of Hepburn and Dundas v. Auld, ante, vol. 1. p. 321.
The second of these cases was an appeal from a decree of the same court dismissing the bill in equity brought by Hepburn and Dundas against Colin Auld, to compel him to accept the land, and pay the difference between the agreed value of the land and the award.
The questions in the two cases being substantially the same, they were heard and argued together.
The breaches assigned in the declaration, in the action of debt by Auld were, that Hepburn and Dundas did not, on the 2d of January, 1800, pay the amount of the award in cash, nor bills of exchange, and did not on that day assign and transfer to Auld, the contract of Graham, with full powers, &c.
Hepburn and Dundas pleaded a tender of the assignment of Graham's contract in three different pleas, the pleadings upon which ended in demurrers. The first raised the question whether Auld was obliged to accept a deed of assignment, the preamble of which stated a part of the consideration of the assignment to be 'a full acquittance and discharge of all the claims and demands of the said John Dunlop & Co. against them being made and executed by the said Colin Auld.' The other two demurrers brought into view the title of Hepburn and Dundas to the land sold to Graham.
The bill of Hepburn and Dundas alleges that the agreement by Auld to accept an assignment of Graham's contract towards the discharge of the debt due from them to Dunlop & Co. and to give an acquittance and discharge of that debt, and of all demands, was the inducement for them to submit the accounts to arbitration. It also states the acts and letters of Auld subsequent to the tender, to show that he considered himself bound to accept the assignment. That on the 27th of June, 1801, after recovering judgment in ejectment against Graham's heirs, Hepburn and Dundas offered to make him a deed for the land, but he refused to accept it.
The answer of Auld denies that he was bound to accept an assignment of Graham's contract which should bind him to give an acquittance and discharge of all demands of Dunlop & Co. against Hepburn and Dundas. He endeavours to explain his conduct and letters subsequent to the tender by saying that he was induced to do it by the representations of Hepburn and Dundas that it was necessary, and that the money due to them by Graham might be sooner recovered, or raised, by sale of the land, than by any contest at law relative to the transaction of the 2d of January, 1800. He denies that he ever considered the tender as good, but was willing to cooperate with them in bringing to an end the suit with Graham, until which time it would be doubtful whether a sufficient title in fee-simple could be obtained from them.
He avers that the compromise made with Graham's heirs was without his consent, and may be set aside when they come of age.
He says the offer of a deed on the 27th of June, 1801, was after he had brought suit against them upon the award, and when it was apparent that their title was bad, or at all events doubtful.
In an amended answer, he states that he had requested them to exhibit to him their title papers, which they refused to do; and requires that they should produce them in court. He avers his belief that their title is defective.
Hepburn and Dundas filed a supplemental bill which states their title. It avers possession ever since 1773, and refers to certain title papers; they say that they verily believe their title to be good, and never heard a doubt till long after the tender of the assignment; that as soon as the objections were made known they took pains to remove them, and have lately obtained deeds of confirmation from the surviving patentees. That the title of Sarah, one of the co-devisees of John West, after her death in 1795, descended upon her brothers Thomas, John and Hugh, and her sister Catharine, and that John, Hugh, and Catharine have lately confirmed their title, and refer to the deeds; and they suppose that Thomas had passed all his title to Sarah's part by a deed executed before her death.
The title which they show in their supplemental bill is as follows, viz.
The six thousand acres were included in a patent for 51,302 acres of land, granted on the 15th of December, 1772, by the State of Virginia to George Muse, Adam Stephen, Andrew Lewis, Peter Hog, John West, John Polson, and Andrew Waggoner. This tract of 51,302 acres was in 1773 divided between the patentees who have occupied in severalty ever since. One of the shares containing 6,000 acres, was allotted to John West, who died seised thereof, and devised all his Ohio lands to be equally divided among his children Thomas, John, Hugh, Catharine, Sarah and Francina, excepting that Hugh was to have 1,000 acres more than any of the other children. The testator had but two tracts on the waters of the Ohio, viz. that of 6,000 acres on the banks of the Ohio, and one of 1,400 acres on Pokitallico creek. The devisees made a partition among themselves; Francina's one thousand acres were allotted to her out of the 1,400 acres on Pokitallico creek, and she, and those claiming under her, have ever since held and enjoyed the same exclusively.
The tract of 6,000 was divided between the others; Hugh having 2,000, and the other four having 1,000 each.
Thomas, by deed of 20th of May, 1788, conveyed his 1,000 acres to Hepburn and Dundas.
John, by deed of 21st of February, 1790, also conveyed his 1,000 acres, in which deed Thomas was a party.
Hugh, also, by deed of 24th of April, 1788, conveyed his 2,000 acres.
Catharine intermarried with Baldwin Dade, who, with her and Thomas West, by deed of 20th of June, 1788, conveyed to Hepburn and Dundas her 1,000 acres.
Sarah intermarried with John Bronaugh, who, with her and Thomas West, conveyed to Hepburn and Dundas her 1,000 acres, by deed of 21st of February, 1790.
Thomas, also, by deed of 25th of April, 1788, quitclaimed to Hepburn and Dundas the 2,000 acres conveyed by Hugh.
By virtue of these deeds Hepburn and Dundas aver that they were seised of the 6,000 acres, and so continued seised and possessed until the contract with Graham.
They then proceed to answer some objections to their title which had been suggested by Auld. They say that he had objected that the original patentees were joint-tenants, and that it does not appear that partition was made among them by deed.
To this they answer, first, that after such a lapse of time a deed ought to be presumed. And, secondly, that upon inquiry they found that George Muse, Andrew Lewis, and Peter Hog died before 1787; that Adam Stephen died since 1787, and Andrew Waggoner and John Polson were still alive, who made deeds of confirmation to Hepburn and Dundas. That they also obtained a like deed from the residuary devisee of Adam Stephen.
They also state that Auld had objected, that the partition between the devisees of John West, not being by deed, was not valid; and that Francina, although she had consented to take her thousand acres on Pokitallico creek, might yet claim a share of the 6,000 acres.
To this they answer, that a parol partition among the devisees was valid.
They state that it was further objected by Auld, that Sarah Bronaugh had never duly conveyed her 1,000 acres to Hepburn and Dundas, and that she was not privily examined according to the laws of Virginia.
To this they answer, that they believe she was privily examined, but the commission is lost or mislaid so that they cannot find it. And further that Sarah Bronaugh died in 1795, without issue; and Francina, who had intermarried with Charles Turner, died without issue in 1796, and her husband in 1802, by which deaths the interest of those ladies in the 6,000 acres, if any they had, devolved upon their brothers Thomas, John, and Hugh, and their sister Catharine Dade, whereupon Hepburn and Dundas obtained from John and Hugh, and Baldwin Dade and Catharine Dade, deeds of confirmation as to the shares of Sarah and Francina. They did not get such a deed from Thomas, because he had before conveyed to them his interest in those lands.
Auld's answer to the supplemental bill, denies that any division ever took place between the devisees of John West, under his will, and avers that Francina always refused to sell her interest in the Ohio lands to Hepburn and Dundas, and that it was settled upon her husband Charles Turner, who died leaving two children by a second marriage.
That the interest of Sarah Bronaugh never passed from her to Hepburn and Dundas, for want of her privy examination.
That the deeds from Hugh West and Thomas West, were not recorded within the eight months, so as to be valid against creditors or subsequent purchasers without notice. That Thomas was embarrassed in his circumstances for many years previous to his death, and there are still debts due from him by bonds and judgments, ...