[Present, Chancellors Rutiedge, Jakes, and Thompson.]

#### Elizabeth James, *vs.*Francis Bremar, William Tunno, and others.

A testatrix bequeaths an annuity of 601. to E. I. chargeable on her whole real estate.

The heir at law, and devisee of testatrix sells the real estate generally to third persons for valuable consideration, without notice of the Charge of the annuity.

On the sale of a house afid lot, the last part of the real estate, to W. T. the vendor expi-éssly informed W. T. that the house and lot were subject to the annuity, and allowed him to retain in his hands a sufficient part of the purchase money to cover the annuity.

The annuitant shajl be decreed to be paid the annuity out of thef *561house and lot exclusively, tribuling'. The other purchasers protected from con-

MAY, 1808.

THE obiect of the bill was to obtain a decree to establish . , *„*. ,, the right ot complainant to the payment ox an annuity out ox a particular house and lot, and to have such arrangements made as wodld secure her the regular payment thereof.

The bill stated that Mrs. Charlotte Poaug died in the year *178?,*leaving in full force hei- last will previously made, by which she bequeathed to the complainant an ánnuity of 60/. charged on her real estate, and then devised her estate toiler son John Poaug, his heirs, &c¿ That the said John Poaug sold all the real estate derived from his mother to sundry persons for valuable consideration^ except a house and lot in Charleston, which he afterwards sold to William Tunno. That W. Tunno was apprised of the charge of the annuity thereon, and that John Poaug intended that this property should be exclusively liable thereto *;*and Tunno retained with the consent of Mr. Poaug, out of the purchase money,’ á sum more than adequate to protect him- from said annuity. That he after-wards conveyed the, said house and lot to F. Bremar, who was apprised of the circumstances. • That an arrear of 611/. being dúe to complainant oh said annuity, she applied to said W. Tunno for páyment thereof, which he refused to pay. The bill prays for relief.

The answer of F. Bremar admitted all the facts, and stated his willingness that the house and lot should be sold to pay the annuity;

The answer of William Tünno admitted the facts stated in the bill, which relate to the sale of said estate, but does not admit that said house and lot, purchased by defendant, was liable in the first instance to the payment of the annuity, and insists that the whole real estate was liable in average and proportion.

The defendant denied that at the time of his purchase he was apprized of the said annuity, and that J. Poaug intended to make the house and lot .exclusively liable to the *562payment. He denied that he consented or agreed thereto^ or retained any part of the consideration on that account. The complainant filed an amended bill, by which she made the other purchasers parties, and repeated the charge -yyq Tunno, either at the time of his purchase, or subsequent to it, knew of the annuity, and of the house and lot being liable to it, and' had agreed thereto, and retained part of the purchase money to cover the annuity.-

The purchasers of the rest of the real estate, answered and stated that they were purchasers for valuable consideration, without notice, and not liable to the annuity, but on-the deficiency of the house and lot, which they pray maybe first-subjected to the annuity.

Wm. Tunno answered the amended bill, and renewed his denial of any knowledge of- the annuity at the time of the purchase, or any agreement subsequent to it,- that the house and lot should be exclusively liable to it; and denies there was any agreement for á reservation of part of •the purchase money to protect him from the annuity. Admits he owes a balance on the purchase, but says he is pressed for payment by the representatives of Poaug.

On the hearing, of the cause, Mr. Turnbull proved the hand writing, of Mr. Wm. Tunno to a letter addressed to Mr. Turnbull, dated 5th January, 1803, in which he acknowledged the liability of the house to the annuity of complainant,; also, a memorandum of payments made by Mr. Tunno, in which are the following words, “ and am bound to pay 60/. yearly and in pencil, “ the balance will be little enough to pay the annuity.”

Mr. W. Robertson testified, that Mr. Tunno and Mr. Poaug applied to- him in the year 1794, to draw titles to the house in question.- Mr. Poaug told Mr. Tunno that his mother’s will burdened that property with the annuity, but that he would pay it up. ■’ Mr. Tunno said there was as much due on the bond as from the interest would pay the annuity. Witness was afterwards directed to institute a suit to secure the balance (which remained due on Turn *563no’s bond) ultimately for Mrs. Poaug, who was entitled to the remainder after the annuity should be satisfied.

Mr. P. Gadsden testified that Mr. Bremar acknowledged the house was liable for the annuity. The witness told Mr. Tunno that his house was liable to the and that he held funds to meet it, and he did not deny it.

Mr. Poaug, in his lifetime, stated that this property was reserved to secure the annuity.

Mr. *W.*Robertson, (called by defendant Tunno) testified that he believed the house was the last of all the property of Mr. Poaug, which was sold.

The deed from Francis Bremar, was to William Lee, in trust for Mrs. Tunno,

Chancellor Rutledge

delivered the decree of the court.

The question in this case is, whether the house and lot ni bill mentioned is exclusively liable for the annuity b.e-queathed to complainant by Mrs. Poaug, who, by will makes her whole real estate chargeable with the payment of it? If the defendant Tunno had been a purchaser for valuable consideration without notice, it would certainly not have been exclusively liable : but it is in evidence that before he had compleated his contract with Mr. P, he knew of the incumbrance, for Mr. Robertson expressly swears to that fact, and says also that Mr. Poaug said he would pay the annuity. The defendant Tunno, in a-letter to Mr. Turnbull in 1803, nearly 8 years after his purchase, acknowledges that the house on the Bay, sold to him by Mr. P. was chargeable with the annuity during complainant’s life, for the payment of which it was secured, and made liable. From this acknowledgment of T. therefore it may very reasonably be presumed that there was some agreement between Poaug and himself respectingthis transaction, though to be sure he has sworn to the contrary.— In another part of the same letter, he says he imagined the executors would not expect any further payment on his bond during the continuance of the incumbrance. If therefore he neglected to withhold p'ayment of so much of *564tbe purchase money as would secure the annuity, it was his own fault, and that is no reason why other innocent purchasers, without notice, should be obliged to coutri-bute to the payment of the annuity. The defendant T. is out of the question, he has no immediate interest in the premises, for he has released all his right to the defendant Bremar, who by his answer, acknowledges the title to be in him — that the house is liable to pay the annuity, and that he has no objection to its being sold. To invalidate Tunuo’s conveyance to Bremar, a deed of defeasance executed on the same day by Bremar to Mrs. T covenanting to convey the house to her on being paid by her at the end of five years, the sum of *40611.*was produced in evidence on the part of T. Upon examining this deed, it will be found that, it is therein recognized that the house, &c. is subject to the incumbrance of the annuity, and that if he Bremar, or the lot should be made subject or liable to the annuity or taxes, &c. then the deed is to be absolutely void. Executions have been issued for taxes, and the house levied op. Though this deed was produced- in evidence and submitted to the court, for the present we shall give no further opinion than that the property still appears to us to be in the defendant Bremar, from his answer, and the evidence offered by complainant. The court are'of opinion, that the house, &c. must be considered as exclusively liable, and subject to the payment of complainant’s annuity.

An order of reference to the master was then made to, examine and report the arrears of annuity.