*Ninety-six District.*

Heard by Chancellor Thompson, and afterwards by Chancellor Gaillard.

#### Peter Moragne, Devisee of Peter Moragne, vs. Le Roy du Cercueil, Delany Carrol and Benjamin Glover.

This court will relieve a person who has contracted to purchase a tract of land, (for which the vendor gave a bond to make titles) against a fraud practised by the vendor and others, to defeat the equitable title; notwithstanding a verdict and nonsuit at law, against the purchaser , who could not avail himself at law, of his equitable title. The statute of 1744 (Public Laws, page 190,) does not stand in the way of such relief. A subsequent purchaser, pendente lite, or with sufficient notice to put him on the enquiry, cannot proteot himself against the equitable title.

Bents and profits decreed; and a conveyance to the complainant.

The complainant filed his bill in this court, to obtain relief anginst a fraud practised on him, as he alledged, by the defendant du Cercueil, in the sale of a tract of land, for which the latter gave a bond to make titles, to Peter Moragne, the elder: and also against other defendants. A general demurrer was filed to the bill, which was sustained by the judge then holding the circuit court.

An appeal was made from the decree, and the court Of appeals made the following order.

MAY, 1812.

The merits of this case have not been gone into. The complainant’s bill v/as demurred to, on the ground, that he had had a verdict at law and nonsuit against him, which under an act of assembly constituted a legal bar to his recovery. In sustaining the demurrer, the court put itself out of possession of the case, and precluded inquiry into the fraud charged by the complainant. He states that the lease produced by Carrol on the trial at lafv, which defeated his claim, was made to defraud him.

The bill must be answered: the decree is reversed.

Henry Win. Desausstjbb, Theodore Gaixeaud, Thomas Waties.

*257The cause being sent down to the circuit court, the defendants put in their answer to the bill.

The following case was made by the pleadings.

The bill was filed on the 1st January. The answers of Delany Carrol and Benjamin Glover, (two of the defendants to said bill) were filed 4th January, 1814, and the other defendant, Francis R. L. du Cercueil not having answered the hill, an order was obtained on the 16th February, 1814, that the hill be taken pro confesso, as regarded him.

The bill among other things alleged, that on the 8lh September, If97, Peter Moragne, the elder, obtained a penal bond from du Cercueil, conditioned for titles to 900 acres of land, when required., And at the same time gave his bond to du Cercueil for 100i. the consideration ofsaid bonds to be paid when du Cercueil executed good and lawful titles to him for said lands. That titles not being made according to the condition aforesaid, Moragne brought an action of debt on the title bond against du Cercueil and obtained a verdict thereon, in the following Words : “ We find for the plaintiff, two hundred pounds, and costs of suit, to he released on the defendant’s making sufficient-titles to the plaintiff, and paying four dollars and costs of suit.” Du Cereneil then executed a release to Moragne for the land, and paid the costs, and Mor-agne received this title in satisfaction for the verdict, and paid the purchase money to du Cercueil. This was on, the 28th October, 1800. On the 10th March, If 98, Delany Carrol rented part of said land from Moragne. After this, Carrol refusing to pay rent, or deliver up the possession, Moragne brought an action against him. to try titles, &c. in which a verdict passed for the defendant. Moragne then brought a second action of the like nature, against Carrol, in which he was nonsuited. This nonsuit was occasioned by the neglect of the attorney. An application was made to the Constitutional Court, to set tiiis nonsuit aside, and refused.

The bill states that the lease under which Carrol claimed, was made to defraud the complainant. That Glover the other defendant purchased the land subse*258quently to the deed from du Cercueil to Moragne, and with full knowledge of the fraud, &c.

The answer of Delany Carrol, as also of Glover, deny the fraud charged in the bill, and the former relies on the /verdict and nonsuit obtained at common law, as forming a legal bar to any claim Moragne has to said land, and the latter that he was an innocent purchaser for a valuable consideration without notice.

The cause came to a hearing before Chancellor Gaillard, who pronounced the following decree

The complainants claim a tract of 924 acres of land purchased by the father, Peter Moragne, on the 8th September, 1797, from du Cercueil, who gave him a bond to make titles to him on the payment of the purchase money. Titles not being made, Moragne commenced an action on the bond, and obtained a verdict for 200Í. with costs of suit, “to be released, (the verdict says) on the defendant’s making sufficient titles to the plaintiff, and paying four dollars, and costs of suit.” The verdict was obtained on the-day of —- 1800, and on the 28th October, 1800, du Cercueil, to be exonerated from the payment of the money, conveyed the lands to Moragne. The legal title was then vested in him, hut previous to this, on the 5th November, 1798, du Cercueil had given a lease for 500 years, of the lands to Delany Carrol. Mo-ragne knew nothing of this lease. Carrol was acquainted with the purchase made by Moragne from du Cercueil on the 8th September, 1797. The nature of it was explained to him by Gilbert and John Moragne: and so satisfactory was the explanation to Mm that he rented (as appears by the lease, and the evidence of Gilbert and John Moragne) part of the lands from Peter Moragne (the purchaser from du Cercueil) on the 10th March, 1798. Carrol being in possesion of the lands, Moragne brought án action against him to recover them, and a verdict was given in favor of the defendant. A new action was brought, and a non-suit suffered at March term, 1804. it is not known on what grounds Carrol succeeded iu obtaining the verdict, the gentleman who brought the action for Moragne being dead; but it hah *259been suggested that the claim of Moragne was defeated fey the production of the outstanding lease for 500 years to Carrol, dated prior to the release from du Cercueil to Moragne, which vested in him the legal title. In the whole of this transaction there is mala fides both on the part of du Cercueil and Delany Carrol. The lease from du Cercueil to Carrol was made with a view to defeat the equitable title to the land which Moragne had under du CercueiPs bond, dated in September, 1797, and Carrol knew it, for Leonard Carrol, (a witness) says lie was present, when his uncle Delany Carrol, and the witness’ father said to du Cercueil, they had heard that he had made title to the land to Moragne, and that he answered, that if he had done so, he would give them new leases for 500 years.

The lease for 500 years to Delany Carrol, was executed afterwards. The nonsuit which has been relied on, was suffered under these circumstances. A copy of the grant was offered in evidence by Mr. Bowie, (Mo-ragne’s counsel) under an act of the legislature, passed in 1803. Mr. Bowie had seen the bill which was drawn by the late judge Trezevant, before it passed into a law. In this bill it was not necessary that the copy of the grant should be accompanied by the affidavit of the plaintiff; but the law, (which was passed) required that his affidavit should accompany the copy of the grant. Mr. Bowie says that the first knowledge he had that this affidavit was necessary, was communicated to him at the trial by the judge from a newspaper, in which the act was printed. The verdict and non-suit, it is contended, constitute a legal bar to the claim of the complainant under the act of assembly, passed in 1744. (Public laws, page 190.) To permit this nonsuit suffered under the circumstances attending it, to be tacked to theiverdict, and then to consider the verdict and nonsuit, as precluding inquiry in a case so replete with fraud as this is, would be monstrous, and I feel no hesitation in saying, that the legal defence which Carrol has thrown around him to protect him, in what his counsel calls his fortification, can avail him nothing. Fraud is *m*foundation on which to build rights. It is *260said that a court of common law has concurrent jurisdiction with this court in cases of fraud 5 and that this case has been tried by a jury. This is true; but it is also true that the merits of this case never were fully before the jury, and that this court is more competent to detect and i’each fraud than a court of common lam Another defendant (Glover) took a mortgage of the' lands from Delany Carrol, to secure between $4 and g 500 which Carrol owed him. The mortgage is dated on the 20th January, 1808, and was soon after recorded. The land was sold in 1809, by the sheriff, as the property of Carrol and bought by Glover for 8 20, subject to this mortgage. The sheriff’s titles are dated the 3d of July, 1809. Mr. Glover claims the land as a purchaser without notice. The bond from du Cercueil to Moragne to make titles was recorded in the clerk’s offiee in this district on the 6th May, 1798. Two suits at law had been brought by Moragne against Carrol, for the lands, and after the nonsuit, Moragne filed a bill in equity, whichfwas pending when he died in 1807 5 and John Moragne says be was at Mr. Glover’s store one day when Carrol was present 3 that when Carrol was gone, Glover mentioned something about a mortgage, and asked about a suit which had been commenced for the land. Moragne told him it would never be dropped until they obtained either the money or the land. Mr. Glover told him, he either had a mortgage of the land, or was about to take one from Carrol. This conversation passed soon after Peter Moragne’s death, between Christmas and Spring.

Part of the debt, perhaps the whole of it, from Car-rol to Glover, was due sometime before the date of the mortgage. There was enough to put Glover upon en-quiry. I consider him as a purchaser with notice.— There is an outstanding lease (for fifty years, of part of the 924 acres of land conveyed by du Cercueil to . Mo-ragne, dated in 1793,) from du Cercueil to Allison, which is unimpeached. The complainants are entitled to the 924 acres of land, purchased by their father from du Cer-cueil, subject' to the lease to Allison for fifty years. Glover must release to them his right acquired by his *261purchase at sheriff’s sale. And it is referred to the commissioner to report the amount of the rents and profits of the land from the 28th October 1800, from which time they are allowed to the *complainants;*and Delany Car-rol must pay the costs.

Theodore Gaiixard.

The defendants appealed from this decree, and prayed that it be reversed, and a decree entered for the defendants, on the following grounds:

First, — .Because the verdict and nonsuit obtained by the defendant, D Carrol, at common law, constituted a legal bar to Moragne’s claim, and all those who claim under him, and the Court of Equity cannot relieve against alegal bar.

Second, — Because Glover was a purchaser for a valuable consideration without notice.

Third, — ’Because when Moragne "made his election to bring an action against du Cercueil on the title bond, he waived his remedy by bill for a specific performance of the contract, and could not again resort to it; and that the present bill is nothing more than a bill for the specific performance of the contract with du Cercueil for the land.

Fourth, — That however this may be, the court erred in decreeing an account of the rents and profits, which equity never will do, until the complainant ascertains his title at common law, for trespass will not lie for them un-till then.

Yancey for defendants.

The appeal was heard at Columbia, and was argued by Mr. Yancey for the appellant, and Mr. Bowie for the respondent.

Mr. Yancey, for appellants, relies expressly on the act of the legislature of 1744, p. 190. Insists that even if verdicts are obtained by frauds, yet by tfye act nó ex-' ceptions being made as to fraud, /such verdict must standi 2 Comyn’s Digest, p. 187.

Equity will never give relief against the provisions of the statute, nor against an express maxim of law. j

*262The party slept on his rights very long; though he might have proved the fraud at law, by the witnesses who proved it in equity. There was plain and adequate remedy at law, and the party cannot come here.

The allegation that the counsel did not know that-, the act of assembly required an affidavit is not sufficient. Equity does not aid if the party suffers by the misplead-ing of his attorney, 2 Yern. 325. If a man has lost his right as to a legal bar he can have no remedy— 2 Atk. 240.

As to Glover he was a purchaser for valuable consideration without notice. The lis pendens was at an end *;*the verdict and nonsuit had been obtained, at the; time of Glover’s purchase.

Glover when he saw Moragne barred by a verdict and nonsuit, had a right to purchase or take a mortgage.

Glover bought when no suit in Equity was pending *;*a bill had been filed but abated, and before a new bill was filed he bought. The suit to operate as lis pendens, must be in full force.

No body proves notice to Glover but Moragne, who Says that he told Glover that the suit in equity would never be dropped till they got the money or land. But this is contradicted by Glover’s answer, for he swears he had no notice, and that he knew nothing of the circumstances, motives, &c. to the deed. He knew of no suit depending. The contradiction of Moragne not sufficient to put down the effect of Glover’s answer.

Glover had a right to buy the land, even if he had notice; for the contract was to make titles. It was ex-ecutory — and verdict was obtained on the bond to make titles, for the penalty to be void on making titles. But the consideration was of no value : the verdict stood for the money. The suing on the bond for the non performance of the contract, was an election of his remedy, and he could not resort to the other ; — and Carrol and those claiming under du Cercucil, might read ily be mislead to believe that the party had resorted to the penalty of the bond, and had abandoned the equity right to have a specific performance.

*263But it is said that the bond to make titles was put en ■record, and that Glover might have found it there, and this was considered by the judge as a circumstance which might have put Glover on his guard. But this ought not to have weight, because bonds to make titles, are not di» rccted by any law to be recorded.

The court decreed that a conveyance should be made to Moragne, or in other words decreed specific performance. The decree directs an account of rents and profits. But this is *erroneous;*for the legal title must be established, before there can be any decree or verdict for mere profits. As to recovering rents and profits, insists it cannot be done, till the possession is recovered at law — 1 Atk. 525.

Equitas sequitur legem — law must be imperative. See 3 Atk. 224, for the ground on which the Court of Equity will relieve against verdicts at law.

Mr. Bowie, for respondents, considers the point that the verdict and nonsuit was not a bar, (as fraud was alleged in the bill,)- to have been settled by the former decree of the court of appeals, which reversed the decree of the circuit court, for sustaining the demurrer. — 3 Atkins, 203, Bassett s. Basset.

Where the court of law gives a too strict construetion to a statute, which produces injustice, equity will relieve. Moragne came to this court to get rid of the fraudulent leases which stood in the way of his remedy: The remedy at law was not complete and adequate.

As to Glover’s case, the testimony Aof John Moragne proves notice. At that time -Glover had not a mortgage Dr deed. See Fonbl. for the doctrine, that what puts a man on enquiry, is sufficient.

As to the recording the deed, it is true it was not bound to be recorded. But the register’s office is the place to search, and if he had searched, he would have found the bond, and deed too. The title to the land from du Cercueilto Moragne, was in 1800, and Glover’s mor-G gage in ¡801.

After the argument, the court of appeals, present Chancellors Desaussure, Gaillard; Wati.es and Jame$» *264unanimously ordered and adjudged, that the decree *oí*the circuit court should be affirmed, for the reasons given