#### *Nathaniel Durham*v. *Ann B. Wadlington et al.*

Columbia,

Novr. 1848.

Whore a compromise of a doubtful right is fairly made between the parties, whether the uncertainty rests upon a doubt of fact, or a doubt in point of law, ifboth parties are in the same ignorance, the compromise is equally binding, and cannot be affected by any subsequent investigation and result.

*Before*Dunkin, Ch. *at*Newberry, *July Sittings,*1848.

Dunkin, Ch. John C. Durham died on the 28th October, 1843. After his decease, on the same day, three witnesses appeared before a Magistrate, and made oath that they heard *259the deceased, being then weak in body, but of sound mind and memory, make the following disposition of his property, viz : That he wished all his just debts to be paid, and all that was left to be equally divided between Thomas B. Wadlifig* ton and Caroline J. Wadlington. An additional affidavit was made, which it is not necessary to notice particularly. Not long after the death of John C. Durham, Ann B. Wadlington, the mother of Thomas and Caroline, (the other defendants,) obtained letters of administration on the estate of John C. Durham.

The deceased had never been married. The complainant was his brother, and resided in North Carolina. The de-" ceased had two sisters, Sarah Pitts and Martha Sturman, who had removed to the West, and of whom tidings had not been received, for some years. Complainant came to South Carolina, some six weeks after the death of his brother, for the purpose of looking after his interest in his estate. He took the advice of Henry Summer, Esq., who gave it as his opinion that the nuncupative will could not be sustained. They then spoke about the sisters in Indiana. It was not known, says complainant’s witness, whether they were alive or dead. An interview afterwards took place between complainant and the witness, and Thomas B. Wadlington. They valued the estate, real and personal, at something over eight thousand dollars. It was finally settled down that T. B. Wadlington should give to complainant one-fifth of this sum, which was $ 160(1, to wit: $800 in cash, and $800 in twelve months, for which a note was given. The agreement was accordingly executed in presence of Ann B. Wad-lington and complainant’s witness, Spencer B. Durham. The agreement bears date 5th December, 1843 — is formally drawn, and in consideration of sixteen hundred dollars, bargains,sells, relinquishes and releases, to Thomas B. Wadlington,-all the complainant’s interest, right, title and claim, to the estate of John Durham deceased, in the district and State aforesaid, and describes the situation or location of the estate. On the 8th January, 1845, complainant returned to this State, received from defendant, Thomas B. Wadlington, eight hundred and fifty-six dollars., being the credit part of the purchase money with interest, and signed a receipt in the following terms: “Received of Thomas B. Wadlington, sixteen-hundred and fifty dollars, in full of my share of the real and personal estate of John Durham, deceased.”

“January 8, 1845.

(Signed) Nathaniel Durham.”

On the 1st. May following, this bill was filed, alleging that' at the time of the sale, the complainant was “under the impression and belief, that the estate of John O. Durham, de*260ceased, was distributable between himself and Sarah Pitts an¿ Martha Stnrman, his sisters; both of whom were supposed to be living, their deaths not having been heard of or ]mown to the complainant, or to the said Thomas B. Wad-lington, and the said Ann B. Wadlington, at the time the said settlement or sale took place, and he expressly charges that it was so understood by the said Thomas B. Wadling-ton and AnnB. AYad lington, his mother, to wit: That complainant sold only one-third of the estate,” &c.

The answer of Thomas B. Wadlington is very full and minute, and cannot well be abbreviated. He sets forth, however, the circumstances connected with the nuncupative will, by which the bulk of the property of the deceased was bequeathed to the defendant and his sister. That he was about to institute proceedings in the Court of Ordinary, for the establishment of the will; in consequence of uncertainty in the proof as to a particular formality, made a compromise with the complainant, and purchased from him for sixteen hundred dollars, “all his interest in, and his right, title and claim to said estate.” He denies explicitly, that there was any agreement or understanding, at the time of said purchase, that defendant was purchasing only one-third part of the estate of John Durham, deceased. He states that “he did not then know whether’the complainant was the sole heir and distri-butee of the estate or not; he had heard that the deceased had two sisters, Mrs. Stunnan and Mrs. Pitts, but they had not been heard from by their relatives in this district, within thirteen years, and it was unknown to the defendant whether they, or either of them, were living or dead, at the time of the death of the said John Durham, and if dead, whether they had left issue then living or not.” That the agreement was, as is expressed in the deed, that he was purchasing all the right, title and interest, of the complainant in *the whole*estate, real and personal, of John Durham; whether that interest should turn out to be onc-third or one-half, or the whole ; and that the defendant thought it not improbable at the time of purchase, that he would thereby acquire the whole estate. That the circumstances which induced complainant to accept his proposal,, were, as he supposes, the strong, moral claims of this defendant and *his*sister, and the chance that they would establish the nuncupative will.

- Sometime after the defendant had purchased complainant’s interest, to wit: in February, 1844, he and his sister filed a petition in the Court of Ordinary, praying the examination of the witnesses as to the nuncupative will, &c. That the complainants, Mrs. Stunnan and Mrs. Pitts, were made parties by publication, and they were required to answer in June following. In July, 1844, the defendant purchased from *261Henry Summer, Esq., the Attorney of the heirs of Mrs. Pitts, their share of the estate, for three thousand dollars.

The principle of law applicable to this case is comprised in § 131, 1 Story, and it is, among other things, there said, “where a compromise of a doubtful right is fairly made between the parties, whether the uncertainty rests upon a doubt of fact, or a doubt in point of Jaw, if both parties are in the same ignorance, the compromise is equally binding, and cannot be alfected by any subsequent investigation and result.”

The answer of the defendant is conclusive that the complainant knew as much of the facts as the defendant knew. The evidence on the part of the complainant proves not less clearly that he was at least as well informed as the defendant as to the probability of establishing the nuncupative will. But how does it now appear that the defendant did not pay to the complainant for his right just sixteen hundred dollars more than it was worth ?

The defendant’s rights can be in no manner affected by the initiative proceedings before the Ordinary. Although he had purchased the complainant’s right, he did not know what might be the rights of the sisters, and as to them, it was important to him, if possible, to establish the will.

The Court cannot say the opinion of counsel was erroneous which recommended the complainant should be made a formal party, although his rights were in the defendant. Then probably, in July, 1844, the defendant had ascertained that the heirs of Mrs. Pitts were his only competitors, and he preferred to purchase his peace, even at an extravagant price, rather than encounter the hazards of litigation.

The Court is opinion that the bill must be dismissed ; and it is so ordered and decreed.

*Copy of*Agreement, *under*seal, *between Nathaniel Durham and Thomas B. Wadlington.*

Statk op South CaroliNA, *?*Newberry District. *\*

Know all men by these presents that I, Nathaniel Durham, of the State of North Carolina, Chatham County, do grant, bargain, sell, release and relinquish unto Thomas R Wad-lington, of the State and district aforesaid, all my interest, right, title and claim to the estate of John Durham, deceased, of State and district aforesaid. The said estate is situate on waters of second creek, and on the creek itself. In consideration of which he pays to me the full and legal sum of sixteen hundred dollars; my right, title, interest and claim to said John Durham’s estate, both real and personal, I do bind myself, heirs, executors, administrators and assigns forever.

Given under my hand and seal this the fifth day of De*262cember, in the year of our Lord one thousand eight hundréd and forty-three.

(Signed) Nathaniel Durham, (l. s.) Witness:

Ann B. Wadlington.

S. B. Durham.

The plaintiff appealed from the decree of his Honor Chancellor Dunkin, and moved to reverse the same, on the follow* ing grounds, viz:

1. Because it was proved that plaintiff sold to the defendant, Thomas B. Wadlington, only one-third of the estate of John Durham.

2. Because the *res gestes*of the whole - transaction show that it was understood between the parties, that only one* third of the estate of John Durham was sold by plaintiff tó T. B. Wadlington, defendant.

3. Because, according to the principles of Equity, the Chancellor should have decreed that one-half of one-third of the estate of John Durham should be accounted for, to the plain* tiff, by T. B. Wadliugtou.

4. Because the defendant, T. B. Wadlington, told plaintiff that the receipt would make no difference, worded as it was, as he only wanted it to return to the Ordinary.

5. Because the decree is ^contrary to the equity of the case.

H.' Summer, plaintiff’s solicitor.

Johnston, Ch.

delivodthe opinion of the Court.

We concur in the decree, which is hereby affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*