Duval v. Bibb

• Decision Date: 18 May 1809
• Citation: 14 Va. 113
• Parties: Duval v. Bibb
• Court: Virginia Supreme Court

14 Va. 113

Duval v. Bibb

Supreme Court of Virginia

May 18, 1809

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The appellee preferred his bill in Chancery against William Duval and Pleasant Younghusband, and obtained an injunction to the judgment of this Court rendered in an action of ejectment between William Duval and himself, which case is reported in 3 Call, 362.

The bill suggested that, in October, 1788, the complainant agreed to sell to Francis Graves, deceased, then in high credit, the lands in question, for 2001. payable September, 1789, three negro girls, and one-half of two entries for lands in Kentucky, to which E. and T. Waltons had been entitled, and for the conveyance of which they had given a bond which had been assigned to Graves without recourse; that, relying on the punctuality of Graves, he accepted his bonds for the money and negroes, and an assignment of the bond of the Waltons for the Kentucky lands; that, being pressed by Graves to make a deed for the lands sold him, he refused to do so, but upon the express condition that he should retain the possession until paid the money and negroes, and until he should receive a proper deed for the Kentucky lands, to which Graves assented, and thereupon he executed a deed to Graves, Dec. 13th, 1788, and has retained possession ever since, having received only a partial payment of money, and one negro, but no deed whatsoever for the Kentucky lands, which are absolutely lost; that some time after (but when he does not remember) he had a conversation with Duval, at Thomas Johnson's house, in Louisa, concerning the purchase and agreement with Graves; when he informed Duval of all the circumstances above stated, and that he should retain the possession of the land, until Graves should comply with the conditions before mentioned; that Duval, being asked by Johnson whether he had purchased the land from Graves, answered that he had not; that, notwithstanding this, Duval had brought an ejectment, and relied on a deed from Graves, dated in 1793, which was not executed until after the information given him as aforesaid, Graves being then sunk in credit, and, as the complainant believes, ruined in his affairs, and the deed obtained from him by Duval being as an indemnity against suretyships for him.

Duval's answer stated that, previously to the conversation at Johnson's, the respondent had a mortgage on the lands; that he then told the complainant of it, and that he intended to purchase the land of Graves, for himself and Isaac Younghusband, to indemnify themselves as his securities; upon which the complainant said, that Graves owed him money, but, if Duval would pay him, he could remove from the land the next fall; that the respondent was surprised, after knowing Bibb had lived on the land from 1789 until that time, that Graves should owe him any thing; that he told Graves what Bibb had said, whereupon he declared that he owed him nothing in his opinion, & c. Pleasant Younghusband (who was made a party as heir of Isaac Younghusband) never answered the bill.

Several depositions went to prove the original agreement between Bibb and Graves to have been nearly as stated in the bill; but there were none at all to shew that Duval had any notice thereof, until the conversation between him and Bibb at Johnson's house, which some of the witnesses supposed to have happened in 1795, but which, from the answer, it seems probable happened before the 28th of November, 1793, the date of Graves's deed to him and Younghusband.

Among the exhibits were, 1. An absolute deed of bargain and sale, for the land in question, from Bibb and his wife to Graves, and his heirs and assigns for ever, in consideration of 1,0001. in hand paid, the receipt whereof is acknowledged in the deed, and a separate receipt for the same, written and signed at the foot of the deed, with a covenant of warranty to Graves and his heirs, dated December 13th, 1788, and proved and admitted to record in the General Court on the 15th and 16th days of the same month. 2. A deed of bargain and sale from Graves to Duval, for the same lands, in fee-simple, with a proviso, " that whenever the said Francis Graves, his heirs or assigns, shall indemnify and keep harmless the said William Duval, respecting certain premises, (noticed in the former part of the deed,) or shall make or cause to be made to the said William, his heirs or assigns, a good, sure, and indefeasible estate in fee-simple, of, in, and to the premises, free from all incumbrances and necessary charges at law, then that mortgage shall be null and void, otherwise to be and remain in full force, power and virtue." Dated February 11th, 1790, and proved and admitted to record in the General Court the 14th of June following. 3. A deed of bargain and sale from Graves and wife to Duval and Younghusband, (in consideration of 6001. to them in hand paid, and for which there is also a separate receipt,) in fee-simple, with a clause of warranty, bearing date November 28th, 1793, and recorded in the General Court, June 17th, 1794. 4. The bond of E. & T. Waltons, for a conveyance of the Kentucky lands, assigned by Swann to Graves " without recourse; " and by Graves to Bibb, in general terms, October 13th, 1788, (which, it seems, was never complied with, nor put in suit.) 5. Graves's bond to Bibb for 2001. dated December 13th, 1788, payable September 1st, 1789; and, 6. Graves's bond to the same, (of the same date,) in the penalty of 2501. for the delivery of three negro girls, on or before the 1st day of April, 1789.

The Chancellor made a decree, (in substance,) giving the plaintiff his choice either to pay to the defendants so much of the consideration money as he had received of Graves, deducting therefrom his costs in this suit, (whereupon the defendants were to make him a deed for the land with a warranty against all their own acts in prejudice of the title,) or to receive from them the balance due of the said consideration money, (without allowing any credit for Kentucky lands,) such balance being ascertained by an account to be taken by one of the Commissioners of the Court; and, if the defendant should fail to pay what should be found due upon such account, within six months after it should be approved and confirmed, that the land in dispute should be sold for ready money by Commissioners, who should pay to the plaintiff what should appear to be so due, and to the defendants, the residue of the proceeds of the sale, after deducting the expenses thereof; reserving to Pleasant Younghusband liberty of shewing cause within months against the said decree.

From this decree the defendant Duval appealed.

Warden, for the appellant. The decree ought to be reversed. 1st. Because the deed from Bibb and wife to Graves, states a different consideration from that mentioned in the bill to have been given for the land, and admits the whole thereof (as well in itself as by the receipt thereto annexed) to have been fully paid. Ars Clericalis, 391, and 2 Dyer, 169, a, Wilkes v. Leuson, shew that neither the bargainor, nor his heir, can aver that his deed was made on a different consideration from that expressed therein. He has not a right to set up any thing in opposition to his own deed, because otherwise purchasers would be entrapped. The deed, with the receipt in full, having been recorded, Duval, when he purchased of Graves, had no reason to expect that the consideration money, or any part thereof, had not been paid. The parol agreement that Bibb should remain in possession notwithstanding the deed, was of no effect. The statute executes a deed of bargain and sale, where to the bargainee's use, and conveys the possession. ^[a] The word " grant," made the land pass by way of use, and there was no need of actual entry. ^[b] Graves, therefore, was in possession by virtue of the deed; and, as he never reconveyed the land, Bibb could not be considered, legally, as in possession.

2. No notice that any part of the purchase-money was due, is proved to have been given to Duval, or to Isaac, or Pleasant Younghusband, until the year 1795, which was after the date and recording of the last deed from Graves.

3. There was no necessity of such an account as the decree directed; but, if it was to be taken, credit should have been allowed to Graves for the value of the Kentucky lands, for which the appellee had accepted the bond of Edward and Thomas Waltons. It is true the assignment of that bond by Graves was not " without recourse; " but the deposition of John Poindexter, who drew the writings, proves that he so understood the intention of the parties. Besides, if Graves were ultimately responsible for those lands, Bibb ought to have used due diligence in endeavouring to recover of the Waltons, before he could look to Graves; yet he has never brought suit on that bond, though so many years have elapsed since its date. But, at any rate, Duval, the bona fide purchaser of the Louisa land, ought, in no event, to be liable for the default of the Waltons, or of Graves.

4. The legal representatives of Graves ought to have been made parties; a balance being alleged to be due from him, and an account directed to be taken, which could not be rendered by Duval. Graves's representatives are interested on his warranty to Duval, and, at law, would have been called in as vouchees. It is a rule in equity, that all persons interested should be made parties. Mitf. 39, Ibib. 144.

Randolph for the appellee. There can be no doubt, after the case of Eppes, & c. v. Randolph, ^[c] that a different...