Nelson v. Carrington

• Decision Date: 01 January 1815
• Parties: Nelson v. Carrington, Executor of Burwell, and Others
• Court: Virginia Supreme Court

18 Va. 332

Nelson v. Carrington, Executor of Burwell, and Others

Supreme Court of Virginia

January 20, 1815

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Lewis Burwell, the elder, who died in the year 1784, by his will directed that his executor should sell, at public or private sale, as they should think most convenient, all his estate real and personal, for the payment of his debts; and that the surplus of the money should be divided between his daughter Elizabeth Page, his son Nathaniel Burwell, and his two grand sons Edwin and William A. Burwell. He appointed his sons Lewis and Nathaniel, Mr. John Page, junr. of Caroline County, and Lewis Burwell, of Mecklenburg, his executors; of whom the three last mentioned qualified.

On the 12th of July, 1794, a written agreement was entered into, " between Nathaniel Burwell, executor of Lewis Burwell, deceased, and John Nelson; " stating, " that the former sells to the latter a tract of land, late the property of the said Lewis Burwell," on the waters of Roanoke, containing about five thousand, one hundred and thirty acres, more or less, at the price of thirty shillings per acre, the quantity to be ascertained by actual survey, if the said Nelson shall require it; the payments to be as follow: to wit, four thousand pounds on the 25th of December, 1794; fifteen hundred pounds on the 25th of December, 1795; fifteen hundred pounds on the 25th of December, 1796; and the balance on the 25th of December, 1797. But as this land is mortgaged to the house of Robert Carey & Co. late merchants of London, the said Nelson is at liberty, out of the said purchase money, to take up the said mortgage; and the said Burwell is to allow him the full amount thereof, except eight years interest during the war; and the said Nelson is to be allowed interest thereupon until the said land payments shall become due. But, as the said Nelson has not yet seen the land, he shall have till the first day of August to determine whether he takes it or not. When possession is delivered, the said Nelson is to enter into bond with full and sufficient real or personal security, as the executors shall require, (which possession shall be given on the 25th day of December, 1794,) for the balance that shall be due."

Nelson saw the land, and, before the first of August, agreed to complete the bargain; which confirmation, signed " J. Nelson," and " N. Burwell," was endorsed on the agreement, under date of " 19th July, 1794." He paid, in part of the purchase money, on the 31st day of the same month, 1000l. to Benjamin Waller, attorney for Wakelyn Welch, surviving partner of Robert Carey & Co., and secured to be paid to the same company, (in whose behalf a decree of foreclosure of the mortgage had been obtained, and who, it seems, by their said attorney, assented to the sale of the land to Nelson,) the farther sum of 2000l. on the 27th of February 1795; which sum was accordingly paid. On the 25th of December 1794, he was put in possession of the land by Lewis Burwell of Mecklenburg, one of the other executors; --and, having made a farther payment of 3000l. in bonds of William Penn and John Taylor, amounting to 1500l., payable the 25th day of December 1795, and 1500l. payable the twenty-fifth day of December 1796, he gave his own bonds, " to Nathaniel Burwell and Lewis Burwell, executors of Lewis Burwell, deceased," for 1000l. payable on demand, with interest from the date, and 707l. 5s. 8d. payable on or before the 25th day of December 1797, being the sum remaining due for the land at 30s. per acre (with some interest calculated,) estimating the quantity at 5130 acres. He also gave a deed of mortgage, on sundry slaves, to secure the payment of the two last mentioned bonds; which deed, bearing date the 25th of December 1794, was executed to " Nathaniel Burwell and Lewis Burwell (of Mecklenburg) acting surviving executors of Lewis Burwell deceased." Two payments were made by Nelson, on account of the bonds; one of the 8th of September 1797, of 300l., and another on the 31st of August 1801, of 436l. 4s. 4d. All the receipts were signed by Nathaniel Burwell only.

On the 20th of March 1801, in answer to a letter from Nathaniel Burwell, Nelson wrote to him, excusing himself for not completing his payments, and observing, " I am well advised that it will be a difficult matter for me to obtain a title to the land, and that the sale by you, as a single executor, without the signature of the other executor, is not a good one: under these circumstances, I am persuaded, no one could blame me, were I to refuse to make any farther payment until I was secure in the title which, in case of your death, I should find great difficulty in establishing; but I am not disposed, after so long indulgence, to raise any dispute, and am willing that the tobacco, as far as it will go, shall be applied to the discharge of my debt, more especially, as your situation is so critical a one, that, had I money at command, and was not in debt, there is no use in the world that it could be put to, that would give me as much pleasure as to stop the sale of your property, or that of any friend; but in case Waller should come forward with his decree, and attempt to make sale of the land under it, I must hope and expect you will enter the appeal again; for if all the money paid by me had been received by him, with what I can now pay, the mortgage would have been more than discharged, and, by our original agreement, that was to have been done first; and, had you met me last May two years, when Col. Burwell and myself went to Richmond, there would not have been as much money due as there is now; for, when I found I could not get a deed, I applied the money I intended for you, except 300l. to the discharge of other debts." In this letter, nothing was said of a deficiency in the quantity of land, and no demand was made of a survey.

In the year 1802, Nathaniel Burwell died, and Nelson, having had a survey of the land made by John Hill, surveyor of Mecklenburg County, by which it was discovered that the whole tract contained no more than 4126 acres, wrote to Lewis Burwell (of Richmond,) who had never qualified as executor of Lewis Burwell the elder, but was executor of Nathaniel Burwell, who was surviving executor of Lewis Burwell the elder, (Lewis Burwell (of Mecklenburg) having previously died,) informing him of the important deficiency discovered in the land: whereupon that gentleman sent a Mr. Fox to make another survey and ascertain the fact. Mr. Fox found that there were but 4125 acres, being one acre less than the quantity appearing by Hill's survey.

Lewis Burwell (of Richmond) having also departed this life, Edward Carrington qualified as his executor; in which capacity, he brought suits and obtained judgments at law upon Nelson's bonds, who thereupon obtained an injunction from the Superior Court of Chancery for the Richmond District, claiming a decree for the money which he contended was over-paid on account of his purchase; alleging, also, that a part of the money intended for the discharge of the mortgage debt had been misapplied by Nathaniel Burwell, and that a legal title had not been made him; praying, therefore, that the said Edward Carrington, as executor aforesaid, and Wakelyn Welch, as surviving partner of Robert Carey and company, be decreed to convey to him the land in question.

Edward Carrington, in his answer, said that the tract consisted of fertile low grounds and cleared lands, and of forest land of far inferior quality and value; that the complainant was in possession of the original survey, which he received from Nathaniel Burwell before he took possession of the land that, in that survey, the quantity of each description of land in the tract was noted, and, by comparing it with the new survey, he must have discovered, as the fact was, that the low grounds and cleared land actually contained more acres than were stated in the said original survey, and that the deficiency was wholly in the high forest land, which, as the respondent verily believed, was not worth more by the acre than one-tenth of the price of the low grounds; that, although 30s. per acre was the stipulated price for the whole track, it must have been founded on an estimate both of the relative value and quantity of high and low land; and that if it had been known that there were more low grounds, and less high land, than the original survey had supposed, the said Burwell would have required, and the complainant would have given, a much higher price by the acre for the whole tract; indeed, the defendant believed that the said Burwell would have asked, for the whole, as much, or more than the sum which the plaintiff was bound to pay according to the estimated quantity. The defendant insisted, that the said Nathaniel Burwell, having delivered to the said Nelson the original survey of the land, by which, it appeared that the quantity was 5141 acres, and it being well known that these old surveys generally contain more land that is stated therein, could not have intended that the said Nelson should, at any future and distant period of time, call for a re-survey; (and that after having had an ex parte survey made; ) but it must have been his meaning and intention that the said Nelson might have his election, after viewing the land, and before giving bonds, as aforesaid, and not after; that if, on the ex parte survey made by the said Nelson, he had ascertained that the land contained more than the estimated quantity, the said Burwell could not have required payment for the surplus, which, by the terms of the agreement, he might have done in the event of a survey called for by the said Nelson; that therefore...