#### M’Clenahans v. Hannah.

Argued November 20th. & 21st, 1815.

i. Chancery Practice — Injunction to Judgment In Ejectment-Case at Bar. — A person having an equitable title to a tract of land, executed a power of attorney, to obtain a conveyance, but without authorizing a sale of his right. The attorney, being induced to believe the title bond defective, and finding it inconvenient to pay the balance due of the purchase money, was persuaded, notwithstanding the land had greatly increased in value, to give up the title bond (but without assigning it) to the husband of a woman in whom the legal title was, in consideration of the husband’s giving up to him the unsatisfied bond for the purchase money. After the death of the wife, the husband sold the land, as his own, and the purchaser of him filed a bill in equity to injoin a judgment in ejectment obtained against him by the heir of the wife, and to get a conveyance of the land. It was decided, that the contract between the attorney and the husband did not stand' on such a footing of fairness and equity, that it ought to prevail over the legal title of the heir of the wife.

In the year 1753, Erwin Patterson, being possessed of lands on the Roanoke, in the then county of Augusta, now Botetourt, sold William Watson, of New Castle, then in Pennsylvania, now Delaware, three hundred acres, opposite his Patterson’s then place of abode, and ten acres of meadow in a different place. Eorty pounds, part of the purchase money, were paid at the time, and two bonds for fifty pounds each were given for the balance; the last of which was payable in 1756 ; and Patterson executed a bond to Watson for a conveyance, to be made at the last payment. Watson returned to Pennsylvania, and died, soon after this transaction ; having devised his interest in the lands to his son-in-law, John Neely, who also died intestate, leaving an infant daughter, who died in her minority without issue ; and the equitable title of the land was claimed by her paternal uncle, William Neely, who, in August 1785, executed a power of attorney to his brother-in-law Robert Anderson, of Botetourt, authorizing him to obtain a legal title for him from the heirs of Patterson, and to pay the balance due of the purchase money; but without furnishing him with the money for that ^purpose. In the mean time, Erwin Patterson had died, having devised all his estate, after his wife’s death, to his only child, a daughter, who intermarried with George Hannah, and afterwards departed this life, leaving an only child, Patterson Hannah, her heir at law.

Robert Anderson, having received the power of attorney, and the title bond in the State of Pennsylvania, returned to Botetourt County, Virginia, and went to the house of Col. William M’Clenahan to get advice from him on the subject; after which, Col. M’Clenahan came to Anderson’s house, in company with George Hannah, (whose wife was then living,) and asked permission to see the power of attorney, and title bond. M’Clenahan, having perused the title bond, remarked several defects in it, and concluded with advising George Hannah to give up Watson’s bond for the purchase money, (which he held,) and Anderson to give up to him the title bond.

Anderson finding it inconvenient to advance the money, (for payment of which Hannah was urgent) especially, as he could not prove the payment of the forty pounds, the receipt being lost; and supposing, from M’Clenahan’s opinion, the title bond to be so defective that he could not enforce a conveyance of the land; he determined to-make the exchange of writings as recommended, and delivering (without assigning it) the title bond to Hannah, received of him a bond of Patterson to Watson, bearing date the 22d of March, 1753, for the sum of 241. 7s. 6d., payable the 22d of March, 1754, which, he declared, on oath, was all the consideration he ever received for giving up the title-bond.

Col. M’Clenahan had, previously, viz. on the 23d of July, 1782, obtained a conveyance from Hannah & wife for 150 acres of land, but whether any part of the land mentioned in the title bond was comprehended in it did not appear by the deed. In 1795, he obtained another deed from Hannah and his second wife, (the daughter of Erwin Patterson being dead,) for part of a tract of 200 acres, granted to Erwin Patterson by letters patent, bearing date the 10th day of Sep- • tember, 1755, also, “a tract of 210 acres granted to the said Erwin *Patterson, by letters bearing date the 22d. of April 1760, which land was sold by said Erwin Patterson, to a certain William Watson, and an obligation given for a title thereto, which said land was purchased by the said George Hannah, from Robert Anderson, assignee of the heir of the said William Watson.”

After this, Patterson Hannah, as grandson and heir at law of Erwin Patterson,, brought his action of ejectment against James M’Clenahan, to whom William-M’Clenahan had conveyed the 210 acres, and obtained a judgment; whereupon, they filed their bill in the Superior Court of Chancery at Stanton, praying an injunction to the judgment, and a conveyance of the land from Patterson Hannah, who was made the only defendant; also, for general relief. The chancellor granted the-injunction ; but, on hearing the answer, exhibits, and depositions, he dismissed the bill with costs, “without prejudice to the plaintiffs’ right of recovery at law upon the warranty in the deed.”

Erom which decree the complainants, appealed.

Wirt for the appellants.

The court is not precluded, from decreeing a specific performance in this case, by the length of time. Mr. Watson, the purchaser of the equitable title, was a non-resident of Virginia. In 1785 the title bond was acknowledged by George Hannah to be good, and the claim subsisting. This is a stronger case than that of Key v. Hord, decided a few days ago. In 1785 there was clearly an equitable title in Watson’s heirs, of which. George Hannah became the purchaser. The question is, whether the purchaser enured to himself alone, or to his wife ?

With whose property was the equity purchased ? He paid bonds, which, by his right as husband, were his property. Although the legal title remained in the wife, and descended to .her son, the latter took nothing but the legal title. The equitable title .was vested in George Hannah, and, by virtue of the deeds from him, in my client.

Williams, contra.

The first application for a conveyance *of the land *239■was in 1785, twenty-nine years after payment should have been made, and the conveyance executed. This would have been too long a time, even if, originally, a deed had been executed, and a mortgage taken to secure the purchase money. The courts of equity, by analogy with the statute of limitations, will not decree a redemption of a mortgage after twenty years, (a) If this be the rule as to mortgages, how much the more should it apply in the case of a contract for a purchase, where the legal title has never been for an instant out of the vendor and his heirs ? Time alone is a sufficient bar to the aid of a court of equity, (b) on a bill for specific performance. This would be an effectual bar, even if Watson, or his heirs, were asking his aid. But a person pretending to be a purchaser from George Hannah, after the death of the daughter of Erwin Patterson, upon an alleged purchase by him from the attorney in fact of William Neely, and he, too, the person who induced the attorney to give up the bond because it would not enable him to recover, would surely find less favour.

If George Hannah himself had brought a bill to compel the heir of Patterson to convey, equity would not have decreed in his favour upon such a stale claim : but, indeed, he was not a purchaser. The transaction between him and Robert Anderson was a mere rescission of the contract, which equity would not have enforced. This is evident from the depositions of Robert Anderson himself, and his son William, who was present. The power of attorney did not authorize his selling the land. He gave up the title bond, because the appellant, William M’Clenahau, assured him it was defective, and that he could not enforce a conveyance. Can it be believed that the parties intended, the one to sell, and the other to purchase, under such circumstances ?

Wirt in reply.

The authorities quoted by Mr. Williams relating to mortgages, are not applicable. After twenty years, the court presumes that the mortgage has been discharged, because an entry may be made within that time. Besides, a mortgage is considered, in equity a security for money; and, *after twenty years, a bond is presumed, at law, to have been paid. We have no right of entry in this case. The analogy of the limitation of a writ of right more properly applies to our case, than that of an ejectment or bond. The cases quoted from Sugden and others are cases of neighborhood residence; not like this, where the purchaser resided in the state of Pennsylvania, and the vendor in a remote part of Virginia. A portion of the time, too, elapsed during the revolutionary war, when the courts of justice were shut.

George Hannah was clearly entitled to the money due on the bond which he gave up to Anderson. The transfer of the title bond to him, though without assignment, gave him the equitable title.

Mr. Williams says, that this was a rescission of the contract, and not a purchase of the equitable title. But George Hannah could only have been tenant by the curtesy, and had no power to rescind the contract. He had no title in him before he purchased of Anderson. It was, therefore, a clear detached purchase by him of the outstanding equity.

Even if it was a rescission, the equity passed to somebody : but it could pass to no one, but to him who gave up for it the bond for the purchase money, which was his property. There being no proof of agency, he must be considered as purchasing in his own behalf.

M’Clenahan was called on as a neighbour for his advice; to settle a dispute : at that time he was indifferent, and had no interest. His purchase of George Hannah was not until ten years afterwards. Could his erroneous impression that the bond was defective, prevent him from buyin g the land ? He bought for a valuable and sufficient consideration, which he fully paid, and by means of part of which George Hannah bought a negro woman and child, now in the possession of Patterson Hannah, who surely ought not to hold the property which his father received for the land, and yet hold also the land itself. Equity requires, as in the case of Hook v. Ross, that he should be held to the alternative, either to relinquish the one or the other.

*Thursday, November 23d,

(a)

 Powell on Mortg. 150 to 153; White v. Ever, 2 Ventr. 340; St. John v. Turner, 2 Vern. 418.

(b)

 Sugd. 246; Harrington v. Wheeler, 4 Vesey, jr. 686; Wingfield v. Whaley, 2 Bro. P. G. 447; and Millwood v. Earl of Thanet, 5 Vesey, jr. 720, note b.

JUDGE ROANE

pronounced the court’s opinion as follows:

It appearing that the power of attorney from William Neely to Robert Anderson, among the exhibits, merely authorized the said Anderson to perfect the contract of 1753, between Erwin Patterson and William Watson, under whom the said Neely claimed, by paying the balance due for the land thereby contracted to be conveyed, and procuring the legal title therefor; and that it did not authorize him to make sale thereof, especially for a smaller sum than it actually cost in the year 1753 ; and it being evident that this land had, in the mean time, very much increased in its value; and there being moreover, reason to believe that the contract in 1785, between George Hannah and the said Anderson, was influenced, if not induced, by the practices of the former upon the weakness and credulity of the latter ; the court is of opinion, that the right accruing to the appellants, under the said last mentioned contract, does not stand on such a footing of fairness and equity that it ought to prevail over the legal title of the appellee.

On this ground, and believing that nothing done in this suit, between the present parties, can bar or affect the right of William Neely, or those claiming under him, paramount the contract last mentioned, if, after so great a lapse of time, and, under all the circumstances of this case, he or they should think proper to assert the same, the court is of opinion to affirm the decree.