#### JAMES HODGES *v.*DRURY HODGES, Ex'r &c.

The act of 1797 (Rev. Stat. ch. XLVI §. 28) empowering executors and administrators to convey land in certain cases, is confined to sales of land for which the vendor had executed a bond with a condition to convey, and had died before performance. It does not extend to agreements to convey made upon other considerations — nor to a case where a deed was executed in performance o£ the condition and lost after the death of the vender, and before its registration.

The bill was filed in March, 1836, and charged that on the 14th day of August, 1819,-the plaintiff purchased a tract of land containing 280 acres from his father, Bartholomew Hodges, at and for the price of #100 then paid in a bond for that sum, which the plaintiff held on the father and delivered up : That the land was to be conveyed in fee at or before the death of Bartholomew; and that to that effect Bartholomew then gave to the plaintiff his bond in the penal of *$ 1000*which the plaintiff had caused to be proved and registered shortly before the filing of the bill. The bill further stated that some years afterwards — in 1826 — Bartholomew, the father made his will in due form *to*pass personál and real estate, and thereof appointed two of his sons, Drary Hodges and Moses Hodges, the executors, and died in 1831; that Drury alone proved the will, and undertook the office, as Moses then resided, and has ever since been out of the State. The bill further stated that five or six days before the death of the father, he executed to the plaintiff three several deeds of conveyance for the different parcels which made up the tract of land purchased by the plaintiff, which were duly attested by two or three witnesses, and delivered by the father to the plaintiff: That they were received by the plaintiff, and deposited by him and his mother in a family chest with the deeds to his father for the same land, and other valuable papers, and that the mother locked the chest and kept the key: That soon after the death of his father he asked for the key of the chest in order to get the deeds, and was informed it was lost. But that afterwards it was found and the chest was subsequently opened by the mother, who was since dead, and by Drury the executor, who admitted that he found therein the deeds to his father, but pretended that there was no such paper therein as a deed from the father *73to the plaintiff, and if the same was in his possession, refused to ’ deliver it or them up, or give any information upon the subject. The bill therefore prayed a discovery from Drury respecting the execution of the deeds to the plaintiff, and whether they were or ever had been in his possession, or under his control, and if so, that he may produce them; or if they have been destroyed or cannot be accounted for, that the plaintiff might be declared to be entitled to a specific performance of the bond, as articles, and that the executors,

Drury and Moses, might be decreed, in fulfilment thereof, to convey to the plaintiff in fee.

Process was prayed in the bill, and was taken out against, and served on, Drury Hodges; but none was prayed or was taken out against Moses, nor any advertisement made as to him.

Drury put in an answer which admitted that his father and testator gave the penal bond, but denied that it was upon the consideration of $ 100, paid in a bond of the testator, or otherwise, or that any thing was paid, or contracted to be paid, He stated that his father and mother were old and infirm, and the plaintiff, then grown up, was their youngest son; and that the father was desirous to have his small property managed by one of his sons so as to provide a com-' fortable maintenance for himself and his wife during their lives, and told the plaintiff he would give him the land at his de ath, if he would undertake it: That the plaintiff agreed to undertake it, and thereupon his father gave the instrument alleged in the bill.' But that the plaintiff very soon deserted his parents and lived several miles off in idleness, giving no attention to his parents or the plantation, and that his father had in reality to maintain him in part: That about seven years afterwards the father, considering the agreement abandoned, made his will, in which he gave the use of all his estate to his widow during life, and directed it to be divided equally between all his children, eleven in number, of whom the plaintiff was one, besides giving another legacy of $ 100 to the plaintiff. The answer denied that the plaintiff ever had a bond on his father for $100, or any other sum, or that he had in 1819 any property, as the defendant believed.

*74Tbe answer further denied all knowledge of any deeds or deed executed by the father to the plaintiff; but admitted that the defendant had heard and believed that the plaintiff did obtain, or attempt to obtain, such instruments from his father just before his death in 1831. It denied, however, that if obtained, they were valid ; and stated the transaction to have occurred just before the death of the father, while *in extremis*— so much so as not to be able to understand wh.at he was about, or to write his name, or even hold the pen himself, but that he was assisted to make his mark mechanically by having the pen put in his fingers, and then moved by another person. The answer further denied that the deeds or either of them ever came to the custody of the defendant, or under his control or disposition, or of any person to his knowledge or belief, other than the plaintiff himself, or that they were deposited in the chest as alleged in the bill. The answer stated the belief of the defendant that they were kept by the plaintiff himself and have been suppressed, either because they were never fully executed, or because if executed, they were not valid in law under the circumstances, and the plaintiff was afraid or ashamed to rely on them.

The answer then submitted whether, upon the case stated in the bill, the defendant could as executor, make a proper conveyance to the plaintiff, and insisted that his relief, if any, was against the heirs at law.

Neither party exhibited the will of the father. — The plaintiff examined several witnesses to establish the' execution and attestation of the deeds in 1831, who testified distinctly to the *factum*of the instruments, and likewise rendered it probable that at that time they were put into the chest by the plaintiff or his mother; and no account was afterwards given of them. The witnesses however spoke in terms of doubt of the capacity of the father at the time to make or execute any contract, and none of them deposed to any consideration paid, or mentioned between the parties, or in the deeds themselves.

The subscribing witness to the bond of 1819 was also examined by the plaintiff, and failed to prove any sum paid, or any bond for $100 or other sum given up by the plaintiff. *75He stated that there was some agreement about maintaining the old people out of the property, and that he reduced it to writing at the same time that he did the bond; but he ... *°*aid not state its contents, nor did they otherwise appear.

The loss of ^death* jen" before its t^cañ by a decree dt-hS'or ¡’suet®toex‘ another,

*Boyden*for the plaintiff.

*J. T. Morehead*for the defendants.

Ruffes, Chief Justice,

after stating the facts as above set forth, proceeded:

The plaintiff, we think, has failed to make out a case on which he can have a decree on his present bill. Supposing the deeds to be valid, either as covenants to stand seized or as bargain and sales, the Court would supply the destruction or loss of them, before registration, by decreeing others to be made. But it could be done only against the heirs or de-visees, in whom the title is. The defendant denies all knowledge of them and they are not traced to him or any other person; There can, then, be no decree for their production.; but only for the execution of others. The act of 1797, Rev. Stat. 279, authorizes executors “ to execute deeds for any lands that may have been *bona fide*sold by the deceased, and for which he has given to the purchaser a bond to convey the same.” The deed which was executed and has been lost is not within the meaning of the words, “ bond to convey,” because by a subsequent provision of the act, the executor can only convey when the bond has been proved and registered. Besides, the power to the executor is only to convey lands “ sold by the deceasedand there is no evidence that the deeds of 1831 even professed to be of that character. If the Court were at liberty to give a liberal construction to the act, this part of the transactions would not bring the case within it.

The draftsman of the bill was aware of this, and therefore sets out the original bond and prays for a conveyance from the executor as a specific performance of that. But the plaintiff has not fewer or less serious obstacles to relief on this, than on the preceding point. In the first place, the act manifestly points to the case of the contract resting in articles, or being an executory agreement, as a bond, at the death of the vendor; and one founded on a pecuniary con*76sideration. Now this agreement had, according to the statement of the bill, been fulfilled by the testator himself; and ^iere wereí in a legal sense, no obstacles, no bond to convey; for the conveyance had been already made. The purpose of the bond was answered, and its obligation gone by performance.

Under the act an ex-riot com-execute's fhe vendo? or his heir’ wouldbe ’ specific*0 perfor-any de-latter* as*10 Warl'dera tion &c, is the forme?

But if no deed had been made by the father, the bill and the evidence are not sufficient to put the act into operation, It is not the meaning of the statute that the executor -should be obliged, or have power to convey, where the deceased or bis heir or devisee would not be bound to do so. To raise the duty in the latter class of persons there must be a valuable consideration stated in the pleadings and proved, and such acts °f f;he vendor as amount to performance of the contract on his part or an offer to perform. Indeed, as has been already noticed, the act is confined to land sold. *The*bill aheges a consideration of ,$100, paid in a bond of the father cancebGd* The answer denies this as positively as an executor can deny an allegation, both as to the circumstances an<^ substance of the allegation. It would require the opportunities of a personal agency in a transaction to deny the allegation more precisely. Of this important fact, thus put in issue, the plaintiff has given no evidence — on the contrary the testimony of the person who wrote and witnessed the bond tends to sustain the answer in this point. That witness speaks of an instrument to secure a support to the plaintiff’s parents; but enough does not appear respecting its provisions to support the contract, if it were consistent with the statement of another consideration in the bill. It does not appear whether it was a mere reservation of a support for the mother out of the property, or an independent covenant on the part of the plaintiff absolutely to maintain his parents, or either of *them; and*if it were the latter, there is *not the*slightest reason to believe that the plaintiff did a single act in compliance with it for a period of upwards of sixteen years, which elapsed between the agreement, and the commencement of this suit. The bill, however, puts the contract on the pecuniary consideration of $100 ; and it is enough to say, that' it denied and not proved, but rather disproved.— There could not therefore be a decree,'founded on the agree*77ment alone, if the bill sought it against the heirs or devisees: much less can it be against the executor.

A a spe-^ manee obtained e uP°n a biu of several

It might not be material in what character the defendant was brought before the Court, if the plaintiff was entitled to relief against him in any capacity without bringing in others. But although the defendant is an heir as well as executor of his father, it is.stated in the answer that there are nine other children, and it appears in the bill that there is, at least, one other son, Moses Hodges, whom it is necessary to bring before the Court, in this aspect of the case. The bill stand over to make parties; but it could not be amended in that respect without making it substantially a new bill, which could not be allowed without the payment of full costs. It is better the plaintiff, if he chooses to proceed in the litigation, should begin *ah origine;*and therefore this bill must be dismissed with costs.

Per Curiam. Bill dismissed.