#### HUGHES, ET AL. v. HIND.

Discharge of notes — illegitimacy—description*

Where money is paid in full of notes, which are not given up. but alleged to be lost, the party will not be allowed to refly upon his possession of them as evidence of money due on a contract to avoid Us performance.

Where a contract is made with an illegitimate child for himself and the heirs of his father, the vender will not be permitted to set up the illegitimacy to avoid his contract, orto investigate the subject, if he have no interest.

A contract for one hundred acres on the *north side of a*tract, including improvements, is for one hundred acies in a square form, or as nearly so as svill include the improvements.

In Chancery. The bill sets forth that Ames Walters,'a«son and heir of William Walters, purchased of Hind one hundred acres of land to be run off' on the north side of Taylor’s survey, in such a. way as to include William Walter’s improvements: that Amos went into possession under the contract, made improvements on the land, and assigned it to the complainants, who are now in possession. With a view to the-completion of the contract, several surveys have been had of the one hundred acres, one of which was made by Beard which excluded a part of William Walter’s improvements: that Hind refused to convey except according to the survey of Beard, and when the complainants, to avoid litigation, agreed to accept that, he, then altogether refused to convey. The bill prays performance of the contract. ‘ <

The answer of Hind *admits*the contract and the demand of a *deed*— denies the improvements and payment for land, and exhibits Walter’s notes as evidence of non *assumpsit*— alleges that the contract was made *for the heirs*of William Walters, and on that ..account, sold at an under price, and that neither the said Amos nor the complainants are his heirs, but illegitimate children — that the survey of Beard was made by mutual agreement, and a deed offered according to that survey, if the complainants would execute the contract, which they refused. To this there is a general replication.

*D. S. Bell*and *Mason,*for the complainants.

*J. II. James,*for the defendant.

Wright, J.

The proof satisfies us the contract was made, and haá been complied with by the complainants. The exhibition of the notes by the respondent is of no avail. The proof is, that when the money was paid, the notes were not given up, and Hind said they were lost, but, if found, should be given up.

The alleged illegitimacy of Amos Walters and the other complainants, children of William Walters, will not excuse- Hind from performing his contract. It appears that William Walters purchased the land of one Langham in its wild state, paid for it, and took a deed, but Langham had no title, and died insolvent. Hind obtained a deed from the owner of the entire tract, knowing Walters’ *651claim and his improvements, and sold to the son for the price of the land exclusive of the improvements, intending to leave the family the benefit of their labor. In this he was right — the complainants are the same persons. It was the labor of their father and themselves that improved the land, and shall the vender, under such circumstances, who has taken their money for the land, refuse a conveyance, because his vendee and those for whom he acted-, were *illegitimate?*It surprises us to hear such a proposition urged in any court. Hind has no interest to protect by the refusal to convey. He stands forth the champion of the legitimate offspring of William Walters, who may possibly come forth to claim the property purchased and improved by the labor of their illegitimate brothers. If the claim were to be listened to for a moment in any case, it would not avail here, because it is nowhere made to appear, that there are other children or heirs. William Walters lived with the mother of his children as his wife, held her out to the world as such, and so raised his family. We cannot permit the fact of their marriage or its validity to be questioned in a collateral matter by a stranger, to enable him to refuse compliance with his engagements.

By the contract the one hundred acres would have to be run off on the north side of the survey, in a form as nearly square as would embrace improvements, but the parties have run other lines by Beard by agreement and will be held to them. Hind will be decreed to convey to Beard’s lines, and enjoined from suing the notes.