#### *Jackson’s Adm’x and Heirs v. Turner.

March, 1834,

Richmond.

(Absent TtTOKBR, P.,* and Cabiobl, ,J.)

Sale of Land — Bleach of Warranty — Fraud Equitable Relief †— Measure of Relief ( — Case at Bar, — J. sells arid conveys lands to T. with warranty, for $1567, which is all paid; T. sells'and conveys same land *54to W. with warranty, for $2345, whereof W. paid $1000; W. being' evicted, it is agreed between W. and T. that *W.*as assignee of J.’s covenant of warranty, should bring suit thereon at law against him, for the common benefit of both, i. e. that W. shall recover the whole amount which J. was bound by his warranty to pay, retain to himself the $1000 with interest &c. due to him, and pay the residue to T. and W. accordingly brings the suit against J. but afterwards by collusion with him, accepts confession of judgment for the $1000 with interest due to himself; a motion is made by T. to have the confession of judgment set aside on account of T.’s interest in the suit, so that the same may be prosecuted to recover the money due on J.’s warranty to T. but the motion is overruled; whereupon, T. files a bill in equity praying a decree against J. for the balance due T. on J.’s warranty, over and above what was due to W.: Held, I. T. is entitled to relief in equity; but 2. the measure of relief is the balance of the purchase money received by J. with interest &c.

Chancery Jurisdiction — Adequate Remedy at Law.— The rule that a court of equity has no jurisdiction to relieve a party who has a remedy at law, applies only to cases in which the legal remedy lies against the same person of whom the relief in equity is sought; per Brockenbrougbc, J.

Infants — Decree against — Reservation of Day to Show Cause.‡ — In a decree against infant heirs, subjecting lands descended to a debt of their ancestor, it is error not to give them a day to shew cause against the decree, after their attainment to full age.

J. G. Jackson, in his lifetime, sold and conveyed to Mary Turner, by deed dated the 22nd September 1812, warranting the title, a parcel of land in Harrison county, for 1S67 dollars; which was fully paid by her to him. Mrs. Turner held the land for near four years, and made valuable permanent improvements on it. And then she sold and conveyed it, by deed dated the 26th April 1816, warranting- the title, to D. B. Walmsley, for 2545 dollars, payable in instalments, *for which he gave her bonds with surety. Walmsley paid her 1000 dollars; but a suit having been brought by one Hickman against Walmsley, Jackson and Mrs. Turner, to recover the land, under a claim of title paramount to Jackson’s, Walmsley withheld payment of the balance of the purchase money. In that suit, Hickman obtained a decree, in October 1822, for the land, and for damages on account of the profits while it was in the possession of the defendants. The damages so recovered by Hickman, were all paid to him by Jackson. Walmsley then brought a suit against Mrs. Turner, on the warranty in her deed to him, to recover the 1000 dollars of purchase money which he had paid her; and thereupon, she was about to bring a suit against Jackson, on his warranty of the land to her; but it was agreed between her and Walmsley, that he should dismiss, his suit against her, and bring a suit as her assignee against Jackson, on the warranty contained in his deed to her, and prosecute the same for here'benefit as well as his own; that is, that Walmsley should recover the whole amount for which Jackson was liable on his warranty, retain to himself the 1000 dollars he had paid Mrs. Turner, and pay her the residue. Walmsley, accordingly, dismissed his suit against Mrs. Turner, and brought the suit as her assignee against Jackson, in the circuit court of Harrison; and then, in violation of his agreement with Mrs. Turner, entered into an agreement with Jackson, whereby Jackson was to confess judgment, in the suit which Walmsley had brought as assignee of Mrs. Turner against him, for 1057 dollars and the costs, in full satisfaction of that action. At the time of this agreement between Walmsley and Jackson,, the latter had full notice of the agreement between Walmsley and Mrs. Turner, that Walmsley’s suit as her assignee against Jackson, should be prosecuted for her benefit as well as his own ; and the agreement between Walmsley and Jackson, by which judgment was to be confessed by the latter for the amount due the former only, was (in the opinion of this court) a fraudulent contrivance of both the parties to it, to defeat the just claim of Mrs. Turner for the *amount which Jackson owed her. Jackson having confessed a judgment to Walmsley, in pursuance of the agreement between them, for 1057 dollars and costs, Mrs. Turner, at the same term, obtained a rule upon Jackson to shew cause why the judgment should not be set aside, and the cause further proceeded in; upon the return of which, and upon a hearing of the parties, though Mrs. Turner’s interest in the suit was clearly shewn, and though evidence was adduced of the injustice done her, the circuit court, holding that she had not such an interest in the suit as authorized her in any way to control' the plaintiff Walmsley, in his agreements in relation thereto, and that it was competent to him to accept a confession of judgment from Jackson, for such sum, and to-be discharged in such way, as he might *55think proper, — therefore discharged the rule. And Walmsley received from Jackson full satisfaction of the judgment confessed.

Whereupon, Mrs. Turner exhibited a bill, in the superiour court of chancery of Clarksburg, against the administratrix and heirs of Jackson and Walmsley, setting forth the facts above stated, and praying a decree against Jackson’s representatives, for the balance justly due to her, upon the warranty contained in his deed to her, over and above what was due to Walmsley.

The administratrix of Jackson, in her answer, referred to and exhibited an affidavit that had made by Jackson, and read on the hearing of Mrs. Turner’s motion in the circuit court, to set aside the judgment he had confessed to Walmsley, wherein he gave his history of the transaction.

Jackson’s heirs were infants, and their answers were put in by a guardian ad litem.

Walmsley denied the fraud imputed to him in the agreement with Jackson, but admitted all the other allegations of the bill.

There were several depositions of sundry witnesses taken and filed to prove the plaintiff’s case; of which the deposition of Jacob Israel was the most material.

*The chancellor made an interlocutory decree, declaring that the plaintiff was entitled to relief, and directing accounts to be taken, in which Jackson should be charged with the 1567 dollars purchase money paid him by Mrs. Turner, with interest on the same, and that she and Walmsley respectively should be charged with the rents and profits of the land during the time it was in their possession, respectively, and credited with the premanent improvements put on the premises by them, respectively, so that the sums credited for improvements should not exceed the sums debited to them for rents and profits.

The commissioner reported two accounts, stated according to the instructions of the court; one shewing what was due from Jackson’s estate to Mrs. Turner, and the other, what was due from Mrs. Turner to Walmsley.

In the first, he charged Jackson, with the purchase money 1567 dollars paid him by Mrs. Turner, with interest from the date of the payment to the date of the report, and with the value of the permanent improvements; and credited him with the 1057 dollars which he had paid to Walmsley, and with the rents and profits; and thus shewed a balance due from Jackson’s estate to Mrs. Turner of 1745 dollars.

In the second account, he charged Mrs. Turner with the 1000 dollars of purchase money paid her by Walmsley, and with interest thereon from the time of the payment, and with the permanent improvements made by him, and credited her with the amount of rents and profits received by him, and with the sum he had received from Jackson on the judgment confessed to him; and thus, he shewed a balance due from Mrs. Turner to Walmsley, of 357 dollars.

The chancellor, upon the final hearing, pronounced a decree, in which, after stating that Jackson’s personal estate had been found inadequate to the payment of his debts, and that the court, in consequence thereof, had, by a decree in another suit then there pending, marshaled the assets, and decreed a sale of a portion of the lands of that decedent, to satisfy such of his debts for which his lands in the hands of *his heirs were liable, —he decreed to the plaintiff, Mrs. Turner, the sum of 1745 dollars, the balance reported by the commissioner, with interest from the date of the decree, to be paid her out of the proceeds of the sales of Jackson’s real estate; and that she should, out of that money when received, pay Walmsley the 357 dollars reported to be due to him, with interest from the date of the decree. Rrom this decree, Jackson’s representatives appealed to this court.

Johnson, for the appellants.

The attorney general for the appellee.

*

He decided the cause in the court ot chancery.

†

Saie of Land — Breach of Warranty — Equitable Relief — measure of Recovery. — A vendee, who has been evicted from land conveyed to him with warranty of title, has a complete remedy at law. Por, in such case, the settled doctrine is that the measure of recovery is the purchase money paid, with interest from time of the eviction. Abernathy v. Phillips, 88 Va. 773, citing the principal case; Threlkeld v. Fitzhugh, 2 Leigh 451; Click v. Green, 77 Va. 827.

And, in Moreland v. Metz, 24 W. Va. 137, it is said: “If a covenant of warranty is broken in Virginia or West Virginia, the measure of damages, when the land is entirely lost to the vendee, is the.purchase money with interest from the date of the actual eviction, the costs incurred in defending the title and such damages as the vendee may have paid or may be shown to be clearly liable to pay the person who evicted him. But if the actual value of the *54land at the time of the sale be proven tobe greater than the purchase money with interest, etc., perhaps this actual value might be recovered in lieu of the usual measure of recovery. Stout v. Jackson, 2 Hand. 132; Threlkeld’s Adm’r v. Fitzhugh’s Ex’r, 2 Leigh 451; *Jackson v. Turner,*5 *Leigh*119; Haffey’s Heirs v. Birchetts, 11 Leigh 83.”

‡

Infants — Decrees against — Reservation of Day to Show Cause. — In Ewing v. Winters, 39 W. Va. 489, 20 S. E. Rep. 572, itis said: “In *Jackson v. Turner*(1834), 5 *Leigh*127, it was held error to subj ect lands of infants to sale in certain cases, and not give them a day to show cause against the decree after their attainment to full age. To obviate such error, § 7 was passed in the revisal of 1849, which reserved such right to the infant, in a proper case, within six months after attaining the age of twenty-one years, to show such cause against the decree without such right being reserved. In such cases the infant may proceed by original bill, bill of review, or petition to rehear, according to the status of the case. See 1 Daniel, Ch. Pr. (6th Am. Ed.) top page 174.” In this case, an infant, after he had attained the age of twenty-one filed his petition asking to be permitted to show cause in the court of appeals against the decree, under § 7, ch. 132 of the Code. It was held that the court of appeals had no original jurisdiction in such case, and his application was refused.

See generally, monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615; monographic *note*on “Infants ” appended to Caperton v. Gregory, 11 Gratt. 505.

BROCKENBROUGH, J.

Upon the eviction of Walmsley by Hickman in October 1822, he had a plain remedy at law against Mrs. Turner, on the covenant in her deed to him; and accordingly he commenced his action against her to recover back the money which he had paid her. She likewise, had a remedy at law against Jackson, to recover the amount of the purchase money which she had paid to him. To avoid circuity of action, and probably with the view of giving Mrs. Turner as little trouble as possible, it was agreed between Walmsley and her, that he should dismiss his suit against her, and as her assignee should bring his action of covenant directly against Jackson on the warranty contained in his deed to her. A similiar course had been pursued in Threlkeld v. Fitzhugh, 2 Leigh 451, and is sanctioned by authority, 2 Thom. Co. Litt. 325, note G. 3. The agreement between them was, that he was to carry on the suit partly for her benefit and partly for his own; that as assignee he should recover the whole amount of what she was entitled to receive from Jackson, and after retaining for himself the principal and interest which he had paid her, should pay over the balance to her. Of this agreement, it appears from the evidence in the cause, particularly from Jackson’s own affidavit (which is made evidence by the answer of his administratrix), and the deposition of Jacob Israel, that Jackson was fully apprised. Walmsley brought the suit against Jackson; but in the progress of it, he abandoned *his assignor’s rights, and took a confession of judgment from Jackson, in October 1823, for 1057 dollars; which was equal to the principal sum he had paid to her on account of the purchase in 1816, and nearly one year’s interest; it was about the sum, exclusive of his costs, that he was entitled to, the eviction having taken place not quite a year before that time. This was an act of gross fraud on the part of Jackson, and probably of collusion on the part of Walmsley. He says, he was deceived by Jackson; but the circumstance of his taking good care of himself, whilst he neglected the interest of her who had trusted him with it, indicates that *56he combined with Jackson. A judgment having been thus rendered in behalf of her assignee, on the covenant which she had taken from her vendor, what situation did it place her in? Did it not deprive her of her legal remedy against Jackson on his warranty to her? Could she maintain another action of covenant against him on that warranty? Certainly not. The judgment on it in behalf of her assignee, was a bar to any suit at law by her. The covenant was integral, and could not be divided into two parts.

Thus excluded from the court of law, she has resorted to a court of equity for relief; and she is met here by the objection, that this is not the proper forum. But, surely, she is not to be deprived of all remedy against Jackson. If she had been guilty of laches in asserting her claim at law, the court of equity might well have closed its doors against her; but this was not the case. Her assignee promptly, with her concurrence, resorted to the court of law. His subsequent abandonment of her rights ought not to be visited upon her as a fault, nor ought the fraud of her vendor to work an injury to her. The court of equity is the peculiar forum for the investigation of fraud, and for vacating fraudulent proceedings, and should not deny its aid to one who has been their victim.

The counsel for the appellants said, that Mrs. Turner had a plain legal remedy against Walmsley on his bonds for the purchase money. It is true that she might have *sued and recovered judgments on those specialties at law, but would it have been conscientious in her to have done so? After Walmsley was evicted, he had a rightful claim against her to recover back the 1000 dollars he had paid her; and it seems to me, that it would have been against equity for her to have recovered on those specialties, the consideration of which had totally failed. If judgments had been recovered against him, he would have resorted to equity for relief, and the very same parties who are now before the court, would have been before the court in that case, with this difference only that Walmsley, instead of Mrs. Turner, would have been the plaintiff. An injunction could not have been refused to Walmsley, but I will not undertake to say that he might not, on the final hearing, have been excluded from the court, as not having come into it with clean hands, if the evidence had been the same with that which exists in this case. But admitting that Mrs. Turner had a naked remedy at law against Walmsley on his bonds, and that it was questionable whether equity would give him relief, yet that could not deprive her of her right to equitable relief against Jackson. Both Walmsley and Jackson had done her wrong; and she might, I think, elect to sue both in equity, rather than sue the one against whom there remained a legal remedy. Let it be remarked, that until Walmsley’s collusion with Jackson, in taking his confession of judgment, there was nothing in Walmsley’s conduct, which could by possibility have prevented him from going into a court of equity to defeat the recovery on his bonds: the false step at that time taken by both of them, whilst it deprived her of her legal remedy on Jackson’s warranty, necessarily gave her a right to equitable relief against him, and she ought not to be turned away from that right, to commence a legal pursuit against another person, which she believed to be unconscientious, and which might, after a long chase, prove unavailing. The rule that shuts the court of equity against a party who has a clear legal remedy, applies only, I apprehend, to cases in which such remedy may be had against the same person, as to whom the equitable relief is sought, and not against a different person.

*It was further contended, that Mrs. Turner is barred of her relief in equity against Jackson, by her proceeding on the rule in the court of law, and the judgment of the court on that rule. I cannot think so. In the action which Walmsley brought against Jackson, and in which the latter confessed a judgment, Mrs.Turner was not a party. Although by agreement it was prosecuted partly for her benefit, yet she was not in court, and was not bound to take the rule for which she did apply. As it was not her duty to proceed at law, her failure to do so, could not have deprived her of her right to assert her equitable claim. However, she made an effort to get justice in the court of law, by obtaining a rule for setting aside the judgment confessed by Jackson to Walmsley, whereby her rights were defeated: but so soon as she entered the court of law, she was excluded. The court of law decided, that she had not such an interest in the suit as authorized her to control the plaintiff, and that it was competent for him to accept such confession as he might think proper. It was not that there was no fraud practised on her, but that she was not before the proper tribunal; she came in collaterally, and the judge decided that she was an intruder there. The rule, then, was discharged, and she was no longer in court. In endeavouring to procure redress in a court of law, she did more than she was bound to do; and if the term of the court of law had ended before she had been informed of the fraudulent judgment, she could never have made the application which she did. She had not then such clear legal remedy, as would deprive her of the right to come into a court of equity, to maintain her equitable rights.

Being, then, properly in the court of equity, the next question is, whether the decree rendered in her favor is correct. It must be admitted that it is erroneous in giving her too much, and in giving a sum of money to Walmsley to which he is not entitled.

Threlkeld’s adm’r v. Fitzhugh’s ex’x, 2 Leigh 451, appears to me to have settled the law on the safest foundation. Where there has been an eviction, the measure of damages *to be recovered against the vendor on his covenant of warranty, is not the value of the land at the time of eviction, but the purchase money with interest, not from the day of sale, but from the date of the actual eviction, the costs incurred by the vendee in defend*57ing the title, and such damages as he may have paid to the person evicting him. According to this rule, what should have been the recovery here? The purchase money paid by Mrs. Turner to Jackson in 1812, was 1576 dollars. When she sold to Walmsley, she received from him 1000 dollars. "The eviction occurred in October 1822. Walmsley having settled his part of the claim with Jackson is entitled to nothing more, either for principal, interest, costs or damages, and the decree is erroneous in giving him 357 dollars. And Mrs. Turner should have had a decree only for 567 dollars the balance of purchase money after deducting the 1000 dollars to which Walmsley was entitled, with interest from October 1822, when the eviction took place, and the costs which she incurred, if any, in defending the suit of Hickman against herself and the others. As to the damages, it appears that they were all paid to Hickman by Jackson ; and, therefore, she cannot recover any against his estate. There is also error in the decree in not giving a day to the infant defendants to shew cause against the decree, when they shall come of age.

I am of opinion, that the decree be reversed, and one entered according to the principles I have stated.

CARR, J.

I was very much struck with the view of this case taken by the counsel for the appellant, when he contended, that this bill was without foundation, because the plaintiff, though the vendor of the land, and though her vendee had been evicted, had not suffered, and never could suffer; as her vendee, by passing her by and suing her vendor, had affirmed his contract with her, had taken his recourse over, and could never after disturb her, or dispute the payment of his bonds to her. An attentive examination of the case, however, has presented it in other aspects. Jackson *sold the land to Mrs. Turner, for 1567 dollars, and conveyed by deed with warranty: Mrs. Turner sold to Walmsley for 2345 dollars, with warranty also : Walmsley was evicted; he had paid 1000 dollárs of the purchase money, and the rest was due by different bonds. These bonds, it is clear to me, none of the parties had an idea (after the eviction) would or ought to be paid: all their subsequent proceedings seem to have taken this for granted. The natural course of proceeding was for Walmsley to sue Mrs. Turner on her warranty, and for her to turn upon her vendor; and we see that Walmsley did bring suit against her, to recover the 1000 dollars. This most clearly evinced, that he had no idea that he remained liable for the bonds unpaid; nor did Mrs. Turner think so; for she was about to pursue her vendor, and thus meet the recovery against her, but to save trouble, and make one suit do for two, it was agreed between her and Walmsley, that he should dismiss his suit against her, and sue Jackson on his warranty; and as in this suit he would recover the whole purchase money which Mrs. Turner had paid, it was agreed, that he should out of this pay himself the 1000 dollars, which he had paid her, and that she should have the balance of the recovery. That this was the agreement between them is in clear proof. The suit against Jackson, then, could not be considered as a confirmation by Walmsley of his contract with Mrs. Turner, and an admission of his liability for the unpaid bonds: the agreement shewed an opposite understanding. It was an agreement too entitled to the favor of the courts; the consideration being to settle their controversy, and diminish litigation. And this would have been its effect, if Walmsley had kept faith; but by a gross breach of it, he took a judgment by confession for 1057 dollars, and released the warrantor from all further claim. Mrs. Turner, at the same term, obtained a rule of the court upon the parties, to shew cause why the judgment should not be set aside, upon the ground that it was collusive, and in fraud of her rights. The circuit court heard the evidence and decided (not that there was no fraud — by no means — but) that Mrs. Turner *had not such an interest in the suit, as authorized her in any way to control the plaintiff in his agreements in relation thereto; and therefore, the judgment was suffered to stand. It was said, this judgment binds the parties, and shuts up this point; and, that if erroneous, there should have been an appeal. That the judgment binds the parties, is most clear; but Mrs. Turner was no party; it was on that very ground that she was turned from the court of law. How could she have appealed? how take up a suit between other parties? Would that court which had, and properly, pronounced her no party, have suffered her to appeal? This judgment, then, of the circuit court, did not, in my mind, preclude her. She has filed her bill against Jackson, charging that he knew of the contract between her and Walmsley, under which Walmsley’s action was brought, and that with a view to defraud her of that part of the recovery which was to go to her, he contrived to have the judgment entered for 1057 dollars only. On this ground, she claims of him the sum which she would, but for the fraud, have recovered at law; and if she fixes upon him a knowledge of the agreement, I think she is entitled to a decree. The administratrix of Jackson in her answer relies on the judgment at law, and brings forward the evidence which was before the court of law, on the hearing of the rule. I shall not resort to Jackson’s own affidavit, because as it would not be evidence for him, it ought not to be used against him. But the evidence of Israel, both in the law case and in this, is satisfactory to my mind, to shew a full knowledge in Jackson, of the arrangement between Mrs. Turner and Walmsley. I am of opinion,- then, that Mrs. Turner is properly in equity, and has a right to a decree; but I think there are in the decree rendered, several errors, for which it must be reversed. 1. It is for too much : it gives her interest on the purchase money from 1812, the date of her contract, to 1822, when the eviction took place. Now, she and her vendee held the land all that time. In Threlkeld v. Fitzhugh, this court, after solemn consideration, and with a view to settle this important question, decided, that the proper measure of *58damages upon *eviction, is the purchase money with interest from the date of the actual eviction,' — the turning out of possession, — and the costs incurred in defending the title, and such damages as the vendee may have paid, or may be shewn to be clearly liable to pay, to the person who evicted him. In this case, there was no actual eviction till October 1822; and of course no-interest till then. Nor has Mrs. Turner been called on, nor can she be called on, to pay any damages; for Jackson has paid them all. The true amount then of her recovery, I think, should be 567 dollars, with interest from October 1822, and any costs she may have paid in the suit of Hickman against her and Jackson. 2. The decree is erroneous in giving 357 dollars to Walmsley: he. was not entitled to a cent beyond the 1057 dollars, which he received from Jackson under their agreement, and his confession of judgment. If there was fraud in that transaction, Walmsley was the most guilty party in it,.and must be bound by the contract. Equity will never give him aid. 3. There is another error in this decree: the lands of infants are subjected to the debt, and yet no day is given them to shew cause against this decree, when they shall come of age: this I consider clear error. It will be observed, that there is nothing here to break the descent; no devise to trustees to sell: the title is in the infants, and no decree taking it out of them can be regularly made, without giving them a day; 2 Madd. Ch. 352, and the many cases there cited. I am for reversing the decree, and entering the proper decree here.

BROOKE, J.

The relation in which Mrs. Turner stood to Jackson, her vendor, and to Walmsley, her vendee, upon the covenants in Jackson’s deed to her, and in her deed to Walmsley, must be the ground of decision in this case. Walmsley being evicted by Hickman, from the land purchased by Mrs. Turner of Jackson, and sold by her to Walmsley, he might have sued her on her covenant of warranty to him, and recovered back the purchase money he had paid her, with interest from the date of the eviction, and such costs and damages as he had sustained by reason *of the eviction, according to the principles laid down in Threlkeld v. Fitzhugh. And Mrs. Turner, having sold the same land to Walmsley, for more money than she had paid Jackson for it, might have sued Jackson for the full amount of the purchase money she had paid him. But Walmsley after suing her, dismissed his suit, and sued Jackson on his covenant of warranty to Mrs. Turner, as her assignee. I am not sure, that in that suit, Walmsley could have recovered more of Jackson than he could have recovered in his suit against Mrs. Turner, and not that amount, unless (as was the case) the amount paid Jackson by Mrs. Turner, was equivalent to his claim against he'r. If that amount had been less, I do not see how he could have made Jackson liable for more than he could have recovered of her, and the costs and damages of his eviction. If Walmsley, suing as assignee of Mrs. Turner, could recover more, the excess must, in conscience, belong to Mrs. Turner: she, holding Walmslev’s bonds for the balance of the purchase money due her, might have sued him at law; and if he injoined her on the ground of his eviction from the land, equity would relieve him only on his paying to Mrs. Turner the excess of his recovery against Jackson, over the amount he had paid her as purchase money, and the costs and damages of the eviction. But Walmsley not having recovered of Jackson more than he was entitled to recover of Mrs. Turner, or very little more, I think Jackson must be held liable, in equity, to Mrs. Turner for the balance, 567 dollars, of the purchase money paid him by her; I say, in equity, for I cannot see how she could have recovered at law upon the same covenant on which Walmsley was entitled to recover, and had recovered, as her assignee. Therefore, I think, she came properly into the court of equity. But if Walmsley could have recovered of Jackson the whole 1567 dollars purchase money paid him by Mrs. Turner, in that case, too, she was well in the court of equity, on the ground of the fraud practised by Walmsley and Jackson; by Walmsley, in violating his agreement with her, to prosecute her rights as well as his own, in his suit against Jackson; and *by Jackson, who, with knowledge of that agreement, confessed a judgment, in total disregard of her just claim. So far, then, I approve the decree. As to the objection, that Mrs. Turner was concluded by the discharge of her rule in the court of law, there is nothing in it: I do not think she was rectus in curia there; she is so here.

But I concur in the opinions of my brothers, that the decree is erroneous in the particulars pointed out by them, and that, therefore, it must be reversed, and a correct decree entered here.

Decree reversed.