Union, *Pinckney District.*

Heard before Chancellor Gaillard.

#### Joseph Smith and Mary Smith, executors of A. Smith, *vs.*James Martin, in his own right, and P. Martin, Joseph Palmer and Elizabeth Martin, administrators of John Martin, dec.

«ASE XXTIII.

Though a bond be a joint bond, the obligors are bound in equity so that on the death or insolvency of one of them, the other and his representatives -are liable.

Notice to the administrator of a surety in a bond to make titles, is not necessary, where notice"has been given to the principal, and his *149representatives, and they have defended the title. The bond is considered as an agreement binding on the parties and their representatives. An issue was directed to ascertain the damage sustained by the purchaser, by the loss of eighty-eight acres of land, recovered from him by a better title. The commissioner to ascertain and report the expenses.

JUNE, 1810.

The complainants filed their hill to have an indemnity for the loss of certain land, sold by one of the defendants to Abram Smith, tlieiv testator, part of which was taken away by an older grant, on a trial at law. The complainants sought redress against James Martin, the vendor of the land, as well as against the representatives of John Martin, the surety, in a bond signed by both to guarantee the title to the whole tract.

The defendants, the representatives of John Martin deceased, relied on the bond being a joint bond, and that on his death the remedy was lost.

The cause came to a hearing before chancellor Gail-lavd, who, after argument, delivered the following decree:

Abraham Smith, in the year *1795,*purchased from James Martin of York district, one of the defendants, a 1 ract of land, supposed to contain 700 acres, for 4901. and took a joint bond of James and John Martin, dated on the 19th Feb. 1795, in the penal sum of 9801. conditioned to be void if the said James and John Martin, their heirs, executors and administrators, should make good titles, clear of all encumbrances, to the said seven hundred acres of land, lying in Union county, (within certain boundaries that arc described,) to the said Abraham Smith, his heirs, executors, administrators or assigns, on or before a stipulated time. Titles not having been made to Smith in pursuance of the bond, ami he being told that part of the seven hundred acres was claimed by William Gondilock, informed James Martin of *it;*and James Martin on the 8th of February 1797, for the sum of 4 907. paid by A. Smith, conveyed to him and his heirs, seven hundred acres ofland in Union conn-1y. [The wife of Jas. Martin joined in the conveyance.] The description of this land corresponds with the description of the laud mentioned in the joint bond of the Mari in,sv The lands, the subject of the agreement, were *150James Martin’s, and the complainant states that John Martin joined in the bond as surety *;*James Martin, at the time he entered into the contract for the' sale of the land, being generally considered insolvent. Abram Smith, notwithstanding he received the deed of conveyance from James Martin, still retained the joint bond $ not intending to release John Martin from his liability on it. William Gondilock having committed a supposed trespass on these lands, in March 1802, a, suit was brought against him by Abram Smith, with the consent of James Martin, to try the right to them. Martin, it is proved, ,was anxious concerning the suit : furnished papers to support Smith’s title; attended the survey ordered by the *court;*accompanied Smith to the counsel employed on his behalf, and communicated with the counsel about the conducting of the suit. From some irregularity a nonsuit was ordered, which was set aside by the constitutional court: a new trial was had, and on it a verdict was given, which took away from Smith, eighty-eight acres of the seven hundred he had purchased. On the trial Smith proved the trespass, and a regular chain of title from John Steen, the grantee, and through James Martin to himself. The defendant claimed under an older grant to A. Gondilock, which covered the eighty-eight acres.

The complainants alleged that they lost by the verdict, thirty acres besides the eighty-eight acres above-mentioned, tlie same not being covered by the grant to Steen, and Mr. Gondilock having obtained a grant for it. This grant to Gondilock is younger than the grant to Steen. The bill is brought against James Martin who resides out of the state, and against the representatives of John Martin, to recover tlie value of the one hundred and eighteen acres said to bo taken away by the verdict, and the amount of the several sums of money expended by the complainants in the prosecution of their claim. No appearance has been entered for James Martin, and an order has been granted to take tlie bill pro conlcsso, as to him. Joseph Palmer, one of the administrators of J-jiin Martin, died without answering the bill. Eliza-*151beili Martin states, generally, her ignorance of the various matters charged in the bill: her imswer is not ma-teria].

This case has been very fully and well argued on both sides, and many points made which it is not necessary to state. Whether the estate of John Martin, is liable to make good to tire representatives of Smith the loss sustained in consequence of the verdict obtained by Gondilock, is the principal question to be decided. It has been said that there was a mistake in drawing up the bond: that it was intended to have been a joint and several bond, not a joint bond only. If this was so, it has not been made to appear; and the court sees no reason, for supposing a different intention in the contracting parties, from that to be inferred from the bond itself. It is a, joint bond, and must be considered as having been intended as such: but, though a bond be joint only, both obligors are bound in equity. The case of Bishop *vs.*Church, quoted by the counsel for the complainants, from 2 Ycz. 101, 106, is in point: one obligor in a joint bond dies, the other becomes bankrupt *•,*though the legal lien is gone, if there be no partiality or collusion by the obli-gee, equity will set up his demand against both him and the executors of the deceased : And in the case of Primrose *vs.*Bromley, in 1st Atkins, it was held that where a joint obligor dies, his representative shall be charged pari passu, with the surviving obligor in the payment of the bond. Joint bonds arc sometimes considered as joint and several: a joint bond was so considered in the case of Thomas *vs.*Fraser, 3d Yez. jr. 399. The defendant’s counsel in his argument laid great stress on the want of notice to the administrators and administratrix of John Martin, of the suit brought by Smith against *Gondilock;*but it is to be observed, that the lamí, the subject of the agreement, was not John Martin’s but James *Martin’s;*and that James Martin was, therefore, the person most likely to be able to support the title: and it appears from the evidence that he did support it as well as he could. Mi-. Palmer, as has been stated, died W itliout answering the hill : and from the answer of E!i-*152zabeth Martin, the administratrix, notice to her, it is probable, would not have benefitted the estate of her intestate. If it would have had that effect, it is reasona-hie to suppose she would have suggested by her counsel, that notice to her would have enabled her to repel the claim of Gondilock to the land recovered by him. There is no fraud or collusion between Smith and James Martin ; and there is no doubt, that Smith’s title was supported by himself, as well as by James Martin, from whom he had taken a conveyance, in the best manner ho could. It would be too much, under these circumstances, for the court to say, that the want of notice to the administratrix, shall deprive the complainants of the relief they ask.

It was also said, the lands recovered by Gondilock, were not part of the lands described in the joint bond ; hut the surveyor, Mr Thompson, and Mr. Gondilock, both say, that they are. *Besides,*if *the*land conveyed by Martin to Smith, be not the lands mentioned in the joint bond of the Martins, no benefit from that circumstance can result to the representatives of John Martin. Smith and his representatives are entitled either to have what was paid for, (to wit, 700 acres of land) or to have the money back again ; and although the legal lien be gone, the court considers the bond as an agreement binding on the representatives of John Martin, as well as on James Martin himself.

With respect to the thirty acres of land, which arc said not to be covered by the grant to Steen, the court will not order this item to he brought into account. It is said by the counsel for the complainants, that the representatives of Smith cannot recover them, as they are not covered by the grant to Steen ; and that Wm. Gon-dilock has a grant for them, it may be so; but as the land formed part of the subject of the suit against Gondilock. and the jury ha’.e not mentioned it in their verdict, this court will not take on if self to decide on the title .to it.

Let an issue be made up to ascertain tho damages sustained by Smith, by the loss of the eighty-eight acres taken from him by tho verdict, in Ihe suit against Gon-

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      *flílock;*and let it be referred to the commissioner to report the amount of the several sums, expended by the complainants or,their testator, in the prosecution of their el aims to the land conveyed to Smith by Martin. Costs to be paid by defendants. -

Ilookcr for appellants. — Gist for respondents.

From this decree an appeal was made on the following grounds:

First, — That the bond in question should not be taken in equity, any more than at law, as a joint bond, or in any way chargeable upon the estate of John Martin, he being dead, and James Martin being the surviving-joint obligor.

Second, — That it was incumbent on Abram Smith ty have given notice of the pendency of his suit against Gondilock, to John Martin in his life, and to Joseph Palmer and Elizabeth Martin, after the death of J„ Martin,

Third, — That the land taken away from Smith by the event of the suit of Smith *vs.*Gondilock, was not warranted or necessarily comprehended in the bond in question.

The appeal was heard by the chancellors James, Thompson, Desaussure and Gaillard 3-ment the decree of the circuit court was affirmed. -and after argu-