Conway Executors and Devisees v. Alexander

• Citation: 3 L.Ed. 321,7 Cranch 218,11 U.S. 218
• Parties: CONWAY'S EXECUTORS AND DEVISEES v. ALEXANDER
• Decision Date: 07 March 1812
• Court: United States Supreme Court

11 U.S. 218

7 Cranch 218

3 L.Ed. 321

CONWAY'S EXECUTORS AND DEVISEES v. ALEXANDER.

March 7, 1812

Present. All the Judges.

THIS was an appeal from the Circuit Court for the district of Columbia, sitting in chancery, at Alexandria.

Walter S. Alexander, the Appellee, son and residuary devisee of Robert Alexander, deceased, filed his bill in equity against the executors and devisees of Richard Conway, deceased, to be permitted to redeem a certain tract of land which his father, Robert Alexander, had, in the year 1788, conveyed to certain trustees, by a deed which the Complainant contended was a mortgage; which land the trustees had conveyed to W. Lyles, who had conveyed the same to said Richard Conway. The deed was by indenture, dated March 20, 1788, between Robert Alexander of the first part, W. Lyles of the second part, and certain trustees of the third part, whereby Robert Alexander, (after reciting his title to an undivided moiety of 400 acres of land, holden in common with Charles Alexander,) in consideration of 800l. paid to him by W. Lyles, and in consideration of the covenants to be performed by the trustees, bargained, granted and sold, aliened and confirmed to W. Lyles, in fee, twenty acres, being part of the said undivided moiety—and to the trustees the residue of the moiety, except part thereof conveyed to B. Dade on the 1st of January, 1788; which residue was supposed to contain 140 acres. To HAVE and to HOLD the 20 acres to W. Lyles, his heirs and assigns, to his and their use forever—and the said residue of the said moiety to the trustees and the majority of them, and the survivors and survivor of them, in trust as follows, to wit: 'To convey the said residue of the said moiety, except as before excepted, unto him the said W. Lyles, his heirs and assigns forever, by good and sufficient deeds in law for that purpose, at any reasonable time after the first day of July, which shall be in the year one thousand, seven hundred and ninety, unless the said Robert Alexander, his heirs, executors or administrators, shall pay, or cause to be paid to the said W. Lyles, his heirs, executors or administrators, the sum of 700l. current money of Virginia, in gold or silver coin, with lawful interest thereupon, from the date hereof, on or before the first day of July, which shall be in the year of our Lord seventeen hundred and ninety. And if the said Robert Alexander, his heirs, executors, or administrators, shall pay, or cause to be paid to the said W. Lyles, his heirs, executors or administrators, the said sum of 700l. current money of Virginia, in gold or silver coin, with lawful interest thereupon at any time on or before the said first day of July, which shall be in the year 1790, in trust, immediately upon the payment being made, to reconvey to him the said Robert Alexander and his heirs forever, by good and sufficient deeds in law, all the title which by virtue of these presents passeth to them the said' (trustees) 'or any of them, of, in and to the said residue of the said moiety, except as before excepted, herein before granted and confirmed unto them.' Robert Alexander then covenants that he has good title in fee simple to the land conveyed; and that the 20 acres shall be laid off in a certain situation contiguous to other land of Lyles, and by certain metes and bounds therein described. The trustees then covenant, that they will well and truly execute the trusts reposed in them, by reconveying the land, to Robert Alexander, if he should pay the money and interest on or before the 1st of July, 1790—or by conveying it to Lyles, if Robert Alexander should not pay it by that day. Robert Alexander then covenants with Lyles, that he will make further assurance, &c. both as to the 20 acres, and as to the residue of the moiety, if the trustees should convey it to him. He then covenants to warrant the 20 acres to Lyles against the claims and demands of all persons whomsoever. This deed did not contain any covenant on the part of Alexander to pay the 700l.

On the 19th of July, 1790, the trustees, by deed of that date, reciting the deed of the 20th of March, 1788, and that Lyles had represented that R. Alexander had not paid the money, and had required them to execute the trust, conveyed the residue of the undivided moiety in fee to Lyles, in consideration of the covenants, agreements, and trusts in the former deed contained on their part to be performed, and in consideration of 700l. mentioned in the said former deed to have been paid by Lyles to Alexander.

On the 23d of August, 1790, Lyles by deed of that date, (after reciting the title of Robert Alexander to the undivided moiety of the 400 acres of land, and his deed of the 20th of March, 1788, to Lyles and the trustees, and that Alexander failed to pay the 700l. on the 1st of July, 1790, and that the trustees, by their deed of the 19th of July, 1790, had conveyed the land in question to Lyles) in consideration of 900l. paid him by Richard Conway, conveyed the 20 acres, and the residue of the undivided moiety of the 400 acres, and all his right, title, interest, use, trust, property, claim, and demand, in and to the same, by force of the said indenture, and all deeds, evidences and writings in any manner or way touching the same, and the right and privilege of prosecuting in the name of Lyles, (if at any time judged necessary by Conway, his heirs or assigns,) any actions at law for the breach of any of the covenants in the said indenture contained: To have and to hold all and singular the premises thereby granted, with the appurtenances, and all the estate, right, title, use, trust, interest, property, claim and demand of him the said W. Lyles thereto, by force and virtue of the aforesaid indentures to Conway, his heirs and assigns, to his and their use forever; with a special warranty against the claims of Lyles and his heirs and assigns only.

On the 17th of January, 1793, Robert Alexander made his will, and after devising specifically a number of tracts of land and moieties of tracts by name and description, to his son Robert, devised all the rest and residue of his estate, real and personal, to his son Walter, the Complainant. Robert Alexander, the testator, died in February, 1793. The land in question was not specifically devised by his will, and Walter, the Complainant, obtained title under the will to several other tracts not specifically devised.

The Complainant became of full age in November, 1803, and brought this suit in 1807.

The deposition of W. Lyles was taken on the part of the Defendants. He testified, that Robert Alexander was not indebted to him at the time of the contract for the land. No part of the money was advanced by him as a loan to be secured by mortgage. He was no lender of money, and would not have lent Alexander the money on mortgage. Alexander was generally reputed not punctual in paying his debts, and rather too fond of law, and at the time of the contract for the land was confined in jail for a large debt, and sent several times to Lyles, and urged him buy the land. Lyles then resided on land adjoining the 20 acres; and his house was very near the line. He wanted the addition of about 20 acres, and was not anxious to have any more. Alexander was more willing to sell his whole residue of the moiety of 400 acres, than to sell a part, his object being to raise a considerable sum to pay the debt for which he was in prison. It was agreed that the 20 acres should be sold absolutely, and the residue should be sold conditionally, as otherwise Lyles would not advance the money. The 20 acres were purchased absolutely, to suit the convenience of Lyles, and the residue was purchased conditionally, to suit Alexander. Lyles was determined to advance no money on any bargain which should make it necessary to go into court to get it back. The condition was understood by both to be, that if he paid the money by the time limited, the trustees were to reconvey the land to Alexander, but otherwise they were to convey it to Lyles in fee simple, and he was to have the land thereafter absolutely to his own use forever. He sold it as soon as he could after he left Alexandria, to get back his money. He received from Conway 900l. at the date of the conveyance, or a few days after. Alexander never made any claim upon Lyles for any part of the land, and never expressed to him any dissatisfaction with the sale, although he saw him frequently afterwards. Alexander was not in confinement when the trustees made their deed to Lyles. No part of the land was cultivated, and no formal possession delivered.

The deposition of Ch. Lee, Esq. who drew the deeds of the 20th of March, 1788, and the 19th of July, 1790, stated that Lyles consulted him about the bargain with Alexander, and represented that Alexander wanted a considerable sum of money to pay a debt which was pressing, and offered to sell some land, but would not sell the whole of it absolutely, but was willing to sell part of it absolutely, and the residue was to be conveyed to trustees, in trust, to convey the fee to Lyles, if a certain sum of money was not paid by a certain day; and if it was, the trustees were to reconvey to Alexander. The deponent was asked if such a contract was lawful, or would be deemed in law only a mortgage; and gave it as his opinion, that the parties might make such a contract, and that it could not be considered a mortgage. Lyles intimated that if that was not very clear, he would not have any thing to do in the business. That he would not, on any terms, make a bargain with Alexander, if he should be obliged to go into a Court of Equity about it, which might be the case if there should be a mortgage; that Alexander was well known to be troublesome and found of law. The deponent was requested to draw such instruments as would place the contract in the state of a conditional purchase of a part of the land, and with this view he drew the writing. He is certain that...