#### Ross v. Hook’s Administrators.

Argued, Feb. 8th, 9th, and 10th, 1813.

1. Specific Performance -Decree for Money Conditionally — Right of Defendant, † — On a bill in equity for specific performance of an agreement, although the court, if (from the want of evidence which the defendant, being in contumacy, ought to disclose) it be not able to direct such performance, may decree a sum of money against him conditionally, for the purpose of compelling the production of such evidence; and, in the event of his not producing it, the defendant will have his election, either to pay that sum, or to perform the agreement specifically; yet, if the defendant, in obedience to the court’s order, do produce evidence, which, though not entirely satisfactory to the plaintiff, is accepted by him. the court ought not, thereupon, to limit the plaintiff’s recovery to the sum of money so decreed, but should proceed to decree a specific performance.

2. Chancery Practice — Setting Aside Sheriff’s Sale-Case at Bar. — If a defendant (with lull knowledge of a decree in Chancery, directing him to deliver up certain slaves to commissioners appointed to divide them,) purchase up executions against the plaintiff, and cause the same to be levied upon his undivided interest in those slaves, which interest thereupon is sold by the sheriff atan nnder rate; the sale ought to be set aside, and the slaves, with their increase and profits, still held liable to the provisions of the decree.

After the decree of the Court of Appeals in the case of Hook v. Ross, reported in 1 H. and M. 310, sundry proceedings took place in the Superior Court of Chancery, for the purpose of carrying that decree into effect. An order was made on the 5th of September 1807, that the defendant Hook, should, on or before the 5th day of December ensuing, render before a commissioner, the schedule, inventories, and accounts required thereby, to be examined, stated and settled by him, according to the principles thereof.

In obedience to this order, a report was made by commissioner Greenhow, to which exceptions were taken by Hook ; and, on the 7th of June 1808, the Chancellor pronounced his opinion, “that although the defendant was not correct in some of the points contended for by him before the master, and some of the schedules, inventories and accounts required of him by the decree of the Court of Appeals, were not made out and presented to the master, as directed, on the 5th of December last, yet it does not appear that the defendant intended to evade the force of the said decree, but on the contrary, to comply therewith, as he called on the master on the *2d of said month, to correct any misapprehension of the decree on his part, by conforming to the master’s constructions thereof, as far as the said defendant could, and which he repeated to the master in writing on the next day, and on the fifth called upon him to perform the decree ; and if the defendant, under these circumstances, was in any respect in an error, it was the duty of the master to have pointed out the same, and if the said defendant had refused a compliance therewith, he must *46have met the consequences of the said decree, unless the master had been mistaken ; therefore, the court, setting aside the said report, and referring the settlement of accounts directed by the said order, to master commissioner Hendren, doth order that the defendant do, on or before the 10th day of the present month, render to the last named commissioner, the schedule, inventories and accounts directed by the decree of the Court of Appeals.”

A report was made by commissioner Hendren, June 25th, 1808, which, being excepted to by the defendant, was, on the 28th of the same month, by consent of parties, recommitted ; “with this instruction, that the defendant be allowed until the 25th day of July next, to lay before the commissioner the schedule, inventories and accounts directed, by the decree of the Court of Appeals, in like manner as it was the duty of the defendant to do before the fifth day of December last; and if he shall produce them, on his own oath, or other satisfactory evidence, to the satisfaction of the commissioner, then he is to proceed to state the accounts, and to make the division directed by the decree of the Court of Appeals; but if the said defendant shall fail to render the said schedule, inventories and accounts to the satisfaction of the said commissioner, on oath or other satisfactory evidence, or to rectify such defects therein, if any, as.the said commissioner may point out, he is to state and report the matters as they occur, and is not to proceed in that event, to state and account between the parties, but to return the report now re-committed, with such other report as now directed, to the Judge, in the vacation, by the 20th day of August next.”

A second report was made by Mr. Hendren, accompanied *with a volume of inventories, schedules and accounts furnished by the defendant; on which, (though many objections were made by the plaintiff to particular items inserted therein, and to numerous omissions and concealments of truth, of which, as he alleged,' the defendant was guilty, and. though the commissioner declared that he did not think those documents satisfactory,) he proceeded, with the aid of other testimony, to make up a statement of accounts between the parties, “with a view to a fair, equitable division of the co-partnership stock, the rents, issues and profits of lands, and the hire of the slaves, together with all other properties of what kind soever, according to the true intent and meaning of the agreement of compromise, which seems to the commissioner to be the spirit of the decree of the Supreme Court.” According to this statement, Ross appeared to be entitled to undivided two thirds of 42,417j¿ acres of land, being *28,278yí,*(subject to such equitable corrections as might be proper, if errors should be discovered ; ) to undivided two thirds of 65 slaves, and their increase, not already listed; (besides other 63 listed in Mr. Hendrens first report;) to two thirds of the copartnership credits, and of the money, goods and chattels, amounting 7,7641. 15s. 5d.; and to two thirds of the hire of slaves, rents, issues and profits of land, and of the sales of lands and tobacco, amounting to 10,0241. 12s. *0}£d.*

*No*exception to this report was taken by the plaintiff. Fifteen exceptions were taken by the defendant; in one of which he averred, that he had been guilty of no contempt or contumacy which ought to subject him to the penalty imposed by the Court of Appeals ; having produced to the commissioner, and done whatsoever he required, and the defendant was able to produce and do.

The cause was heard, September 21st, 1808; whereupon, the chancellor was of opinion, “that the defendant had not rendered such schedules, inventories and accounts, upon his own oath, or other satisfactory testimony as would enable the commissioner of this court to state a fair and just account between the parties of the same, and to make an equitable dividend thereof, agreeably to the decree of the Court of ^Appeals ; and that, in consequence of such failure on the part of the said defendant, the decree of this court pronounced on the 24th day of March 1802, as mentioned in the said decree of the Court of Appeals, is, in virtue of that decree, affirmed.” He therefore appointed commissioners to execute that decree ; and, also, directed, that Hook should make conveyances to Ross upon Ross’s executing bond, with approved security, to Hook in the penalty of thirty thousand dollars, conditioned to indemnify the said Hook against all debts contracted in Great Britain on behalf of the said Ross and Hook, and also for any contract made by either party for account of Ross and Hook.(a)

On the first of February 1809, the suit abated by the death of the defendant; and was revived, in the same month, against Christopher Clarke and Booker Preston, his administrators with the will annexed, and the same Christopher Clarke and Elizabeth his wife, and other devisees.

The commissioners so appointed, made a report in January 1810, (accompanied with sundry documents,) from which (among other things,) it appeared, that sixty-three of the slaves in controversy were not delivered up by the administrators to be divided conformably with the decree ; but that Christopher Clarke, having (with full knowledge of the said decree) purchased two executions, in favour of Elizabeth Overton and others against David Ross, had caused the same to be levied on Ross’s undivided two-thirds of those slaves; and such undivided interest was sold, in part satisfaction, of the said executions ; that Ross’s agent forbade the sale, but Clarke gave the sheriff an indemnifying bond, and bought the said undivided two-thirds of the slaves himself, (being the highest bidder,) for the sum of 21041. 13s. 4d.; and that the commissioners, being permitted, by the sheriff, only to view the slaves, valued them collectively without delivering any of them to Ross ; the amount of which valuation was 18,287 dollars.

To this report the plaintiff excepted.

The chancellor, June 26th 1810, recommitted the report, and the exceptions, to the commissioners who made it, “with *these instructions; first, to fix the cash value of the slaves at the time of the former valuation, if they shall be dissatisfied with the same ; for which purpose the defendants are to produce the said slaves to the said commissioners, if required ; secondly, *47if the said commissioners shall be satisfied with their former valuation, they are then required to report the circumstances which produced the difference between the amount thereof and the sales by the sheriff of Franklin ; and, thirdly, that the commissioners state an account between the parties, in order to ascertain the balance due upon the former decree of this court, and report the same in order to a final decree, stating specially any matter which the parties may require, relative to the subjects of re-commitment, except as to the account aforesaid.”

In pursuance of this order, the commissioners reported, that they had no reason to be dissatisfied with their former valuation of the slaves, that slaves made under execution seldom produce the value of the property sold ; but this was an unusual case, viz. an undivided two-thirds interest in each negro was proclaimed to be sold; which prevented a purchaser (who understood that he had arrangements to make with the defendants for the other third part,) from giving the true value of an entire interest in a whole negro ; the sale was also forbidden by the plaintiff’s agent, which, no doubt, had its effect. The commissioners moreover, made a statement of the account between the defendants and the plaiutiff ; with sundry remarks ; submitting the questions thereupon to be determined by the court.

The plaintiff filed twelve exceptions to this report; and, on the 25th day of September 1811, the chancellor pronounced his opinion, “that the plaintiff’s interest in the co-partnership negroes of Ross and Hook was subject to execution by any of the plaintiff’s creditors, unless disposed of bona fide by him, for a valuable consideration, before any such execution was delivered to the sheriff of the county, where the negroes were, to be executed ; and therefore the sale, which took place, in the County of Franklin, at the instance *of one of the defendants, is to be justified in like manner as if it had been at the instance of any other creditor; and that any loss in that sale must be sustained by the plaintiff and, (after making other remarks on the points in controversy,) he proceeded to state the credits to be allowed the defendants, (debiting them with 16,3471. 4s. 7jíád. the amount of the decree of March 24th, 1802,) so as to shew a balance due to Ross, on the 25th day of September 1811, of 74751. 15s. ll^d. subject to a farther deduction of 40751.19s. 4d., on account of the balance to Overton’s debt, to stand suspended until the farther order of the court; “leaving 33991.16s. to be now made, 1st. in the valuation and assignment of two-thirds of the Western lands ; and 2dly. by a sale of so much of the property comprised in the deed of trust of December 4th, 1801,(1) not disposed of by the commissioners, as would pay any remaining balance.” It was therefore decreed, “that so much of the reports, and of the exceptions thereto as conflict with the foregoing opinion, be set aside, and the residue thereof be confirmed : that the commissioners, who acted in execution of the decrees aforesaid, and have in their hands the two-thirds of the hires of the said negroes, (as reported by them,) after deducting two-thirds of the charges allowed to them, pay the balance thereof to the plaintiff ; that so much of the balance of 74751.15s. 11 *%&.*as is equal to the balance of 40751. 19s. 4d. due upon Overton’s claim, stand suspended until the farther order of the court: that the commissioners heretofore appointed, or any three of them, do proceed in the execution of the decrees aforesaid, agreeably to the foregoing opinion, and, after deducting the amount of the valuation of the Western lands from the said sum of 33991. 16s. *T¡4,&.*if any balance shall remain, proceed, agreeably to the terms of the said deed of trust of the 4th day of December 1801,(2) to sell so , much of the property therein comprised, not otherwise disposed of by them, as shall be sufficient to pay such balance; and make report of their proceedings to the court.”

*From this decree the plaintiff prayed an appeal to the Court of Appeals, which was allowed by the chancellor. (3)

Saturday, December 11th, 1813.

†

 See monographic *note*on “Specific Perform anee” appended to Hanna v. Wilson, 3 Gratt. 243.

(a)

 See 1 H. *&*M. 325.

(1)

 Note. See Ill. & M. 328—9.

(2)

Ibid.

(3)

 Note. See Rev. Oode, 1st. vol. p. 375, ch. 223; and 2d. vol. p. 139, ch. 103, sect. 2.

JUDGE ROANE

pronounced the Court’s opinion:— “That, in the event which has happened, of John Hook having produced to the commissioner, for the purpose of taking the account between the parties, books, papers, and documents, which, though not entirely satisfactory to the appellant, were accepted by him, a specific performance of the compromise of the 30th and 31st of March, 1795, should have been decreed by the Court of Chancery, pursuant to the tenor of the former decree of this Court; and that it was erroneous in the said Court to limit the appellant to the sum of 163471. 4s. 7}¿d. a sum only decreed by this Court, as an alternative or penalty, in the event of such books, documents, and papers not being furnished.”

“The Court is also of opinion, that the negroes sold under Overton’s executions, in the proceedings mentioned, not having been delivered up by Christopher Clarke, one of the administrators of the said John Hook, for the purpose of being divided pursuant to the decree of this Court; and the said Clarke, on the contrary, (with a full knowledge of the said decree,) having purchased up the said executions, caused the same to be levied upon the appellant’s interest in those negroes, and which were, consequently, sold for a price far below what they would have brought had they been previously divided; the said sale, under all its circumstances, ought to be set aside, and the negroes aforesaid, with their increase and profits, to be held liable to the provisions of this decree and the former decree of this Court.”

“The Court is also of opinion, that the final decree of the Court of Chancery having proceeded upon the erroneous idea of making the sum of 16,3471. 4s. the basis thereof, it was unnecessary for that Court either to approve, modify *'or reject the report of commissioner Hendren, among the proceedings. Neither does this Court do more than declare its opinion on the important principles herein contained, in addition to the former decree of this Court, the details of which are so clear that they cannot be easily misunderstood. The Court, however, is of opinion, that commissioner Hendren, *48rightly proceeded to take the account, in this case, upon the hooks, documents and papers exhibited in the cause; and presumes that the report of that commissioner will readily enable the Court of Chancery, by reforming the same or otherwise, finally tp settle this controversy pursuant to the principles herein contained ; and the Court is of opinion that so much of the several decrees of the said Court of Chancery, as conflicts with this, or the former decree of this Court, is erroneous ; therefore it is decreed and ordered, that so much of the said decrees as is mentioned above to be erroneous, be reversed and annulled ; that the residue thereof be affirmed ; and that the bause be remanded to the said Court of Chancery to be finally proceeded in, pursuant to the principles of this decree.”