Sarah Boone and Others, Appellants v. William Chiles and Others, Appellees

• Court: U.S. Supreme Court
• Writing for the Court: BALDWIN
• Citation: Sarah Boone and Others, Appellants v. William Chiles and Others, Appellees, 35 U.S. 177, 10 Pet. 177, 9 L.Ed. 388 (1836)
• Decision Date: 01 January 1836
• Parties: SARAH BOONE AND OTHERS, APPELLANTS v. WILLIAM CHILES AND OTHERS, APPELLEES

35 U.S. 177

10 Pet. 177

9 L.Ed. 388

SARAH BOONE AND OTHERS, APPELLANTS v. WILLIAM CHILES AND OTHERS, APPELLEES.

January Term, 1836

[Syllabus from pages 177-180 intentionally omitted] APPEAL from the circuit court of the United States for the district of Kentucky.

The principal facts of this case were the following: Reuben Searcy being entitled to a settlement of four hundred acres of land, and a pre-emption of one thousand acres, in Bourbon county, Kentucky, under the laws of Virginia; obtained a certificate thereof from the commissioners, and he employed one John Martin to perfect the title to the lands, and gave him one-half of the same for so doing. On the 24th September 1781, Searcy sold seven hundred acres, supposed to be one-half of the land, to William Hoy, and executed a bond to Hoy. The bond was in the following words:

'Know all men by these presents, that I, Reuben Searcy, of the county of Fayette, am held and firmly bound unto William Hoy, of the county of Lincoln, and state of Virginia, in the penal sum of fifty thousand pounds, current money of Virginia, to which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, unto the said William Hoy, he, his heirs, or assigns, this 24th day of September 1781. The condition of the above is such, that if the above-bound Reuben Searcy shall well and truly make, or cause to be made, as soon as deeds are made to lands in this county in general, a good and sufficient deed for seven hundred acres of first-rate land, lying in Fayette county, on Licking creek, between John Martin's station and Ruddle's station; it being part of a settlement and pre-emption, that John Martin cleared out on the halves for said Reuben Searcy; and the said Hoy takes his first choice of the land; then the above obligation to be void; otherwise to remain and be in full force and virtue.'

On the 15th of December 1781 William Hoy made the following assignment to George Boone of this bond, by an endorsement thereon:

'I, William Hoy, assign over the within bond unto George Boone, his heirs, or assigns; and said Hoy obliges himself, his heirs, executors, and administrators, as shourety to within bond; and if the within lands cannot be obtained by reason of a prior claim, then, and in that case, seven hundred acres, equal in quality and convenience, shall discharge the within bond.'

Searcy also assigned the plats and certificates of survey to Hoy, who was thus enabled, in July 1785, to complete the title, by obtaining patents for the land in his own name. On the 30th of April 1785, George Boone made the following assignment of the bond to Thomas Boone, the ancestor of the appellants, who are his heirs:- 'I do hereby assign over all my right, title, and claim of the within bond unto Thomas Boone, heirs, or assigns, without recourse to the same; that is to say, that I, the said George Boone, am no ways obligated, if the said William Hoy, or his heirs, sufficient to make good the within bond; but if the said William Hoy, or his heirs, should not be good, then I, George Boone, do bind myself, my heirs, to make good the same unto the said Thomas Boone, or his heirs or assigns.'

On the 25th day of January 1823, Thomas Boone filed a bill in the circuit court of the United States for the district of Kentucky, stating his equitable right, thus derived, to seven hundred acres of land, part of the settlement and pre-emption of Searcy, alleging that he had never parted with the same; but admitting that he made a conditional contract with Hezekiah Boone for it, which was never complied with by said Hezekiah, and was afterwards expressly abandoned by him.

On the 1st of October 1787, Thomas Boone, who resided in the state of Pennsylvania, gave to George Boone a power of attorney, in the following terms:

'Know all men by these presents, that I, Thomas Boone, of Oly township, in the county of Berks, and commonwealth of Pennsylvania, blacksmith, for divers good causes, me hereunto moving, hath constituted and appointed, and by these presents do constitute and appoint my trusty friend, George Boone, of Madison county, in the settlement of Kentucky, and commonwealth of Virginia, yeoman, my true and lawful attorney, for me and in my name, and to my use, to ask, demand, sue for and recover of and from Major William Hoy, of Kentucky settlement, a deed or other lawful conveyance, valid in law, for seven hundred acres of land, in or near the waters of Hinkson and Stoner, branches of Licking river; it being one-half or moiety of a settlement and pre-emption right, belonging to a certain Reuben Searcy, and which I purchased from squire Boone, who purchased the same from said George Boone, who purchased the same from said William Hoy, hereby giving and granting my sole power and authority to my said attorney concerning the premises, to do or cause to be done therein, as amply as I myself might or could do were I personally present; and on the obtaining said title and conveyance for me, and in my name, sufficient discharges to sign, seal, and deliver, and one or more attorney or attorneys under him, to substitute and appoint, and at pleasure to revoke, hereby ratifying and confirming whatsoever my said attorney shall lawfully do concerning the premises. In witness whereof, I have hereunto set my hand and seal, this 1st day of October 1787.'

The bill charges that William Chiles instituted a suit in the Bourbon circuit court of Kentucky, without the knowledge or consent of Thomas Boone, in the name of Thomas Boone, William Chiles, Hezekiah and George Boone, against the heirs of William Hoy, and against others in possession of the land, to compel the execution of a conveyance of the seven hundred acres of land: that in the suit, Chiles, alleging the execution of the bond by Searcy, and the assignments before stated, pretended that, under the conditional contract between Thomas and Hezekiah Boone, the latter had become entitled to the land, and that he had purchased it from said Hezekiah. In the suit, a decree was pronounced for a conveyance to be made to Chiles; and on the 7th day of January 1822, a commissioner, appointed by the court, according to the laws of Kentucky, executed a conveyance to Chiles for seven humdred acres of the land, in hundred acres of the land, in

In the proceedings in the Bourbon court, William Chiles made Green Clay a defendant, alleging him to be a purchaser from Newland and wife, of two-eighths of the land, he having notice of Thomas Boone's rights. The wife of Newland was one of Hoy's heirs. After the decree, he purchased from Green Clay all he held under Newland and wife; and, in this case, he relies on the title obtained under that purchase.

Hezekiah Boone, by his answer, asserts a right to the land under the conditional contract, but no proof of a compliance with the same was given in the cause; and it was in evidence that, long after the contract, he acknowledged he had no right to the land, and that it belonged to Thomas Boone.

Some of the defendants, in the circuit court, allege that George Boone, as attorney in fact for Thomas Boone, in August 1792, assigned Searcy's bond to a certain John South, and delivered the bond to him. John South was the executor of William Hoy and had married one of his daughters; and South sold, to some of the defendants, parts of the land, under a pretence that he held Hoy's claim: and they insist that the assignment of Searcy's bond shall enure to their benefit.

It was in evidence that William Chiles, after the death of John South, applied to Benjamin South, who had the custody of Searcy's bond, and by an arrangement with him, the assignment to John South was erased and cancelled, and the bond was transferred to Chiles. This was prior to the institution of the suit in the Bourbon county court, and the bond was filed among the proceedings in the cause.

The defendants also set up, by way of defence, that an agreement in writing, of which a copy is filed, was made between Thomas Boone and Boon Engles, in December 1822, by which Engles undertook, at his own expense, to prosecute a suit for the 700 acres of land in dispute; and, as a consideration for his trouble, &c., was to have one-half of the land. This suit, they allege, is prosecuted under that agreement; and they charge that it is, therefore, a case of champerty and maintenance, forbidden by law; and in which the court can give no relief. The complainants rely, that at the time of the agreement, the law of champerty and maintenance was not in force in Kentucky; and that, if it was, this case does not fall within its scope.

During the pendency of this suit, in the circuit court of Kentucky, the defendants, in the suit in the Bourbon circuit court, instituted, as aforesaid, in the name of Chiles and the Boones, prosecuted a writ of error from the court of appeals of Kentucky, to reverse the decree, obtained in that suit. And the court of appeals accordingly did reverse the decree for want of proper parties; and remanded to cause to the Bourbon circuit court for further proceedings. The cause is still pending there; Chiles and the heirs of Thomas Boone respectively claiming a right to direct its future prosecution.

By amended pleadings, the complainants allege the reversal of the decree of the Bourbon county court; and the heirs of George Boone were made defendants. They also allege that the heirs of George Boon assert no claim to the land; and that Searcy is dead, having left no heirs known to the complainants.

During the proceedings in the circuit court, and in this situation of the same, a question of jurisdiction arose; and the judges being divided in opinion, the cause was adjourned, according to law, to the supreme court, with the following statement of the points respecting which the judges were divided in opinion: 1. 'The court being then divided, and the judges opposed in opinion as to the jurisdiction over the case; and, unable,...