U.S. Supreme Court
Caldwell v. Carrington's Heirs, 34 U.S. 9 Pet. 86 86 (1835)
Caldwell v. Carrington's Heirs
34 U.S. (9 Pet.) 86
APPEAL FROM THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF KENTUCKY
A Bill was filed in the Circuit Court of the United States for the District of Kentucky claiming certain lands in Kentucky under an agreement by parol by Carrington with Williams for an exchange of lands, and in which exchange, C., the husband and devisor of the claimant, agreed to give certain lands then owned by him in Virginia to W., and of which W. took possession, and part of which he sold, and for which W. was to convey certain military lands in Kentucky to C. The bill prayed that the heir of W. should be decreed to convey the lands and that certain persons who, knowing of the agreement between C. and W., had purchased from the heir of W. and who had obtained from the heirs of W. the legal title to a part of the same lands should be decreed to convey the same to the complainant.
The court held that although the statute of frauds avoids parol contracts for lands, yet the complete execution of the contract in this case by Carrington by conveying to Williams the land he agreed to give to Williams in exchange prevents the operation of the statute in this case.
This was undoubtedly supposed in Virginia to be the sound construction of the statute when this contract was made, and as the lands then lay in Virginia, Kentucky being then a part of that state, this construction forms the law of contract.
The evidence in the cause showed that the persons who had purchased part of the lands to which, by the agreement with Williams, Carrington was entitled had notice of that agreement; they could derive no title from such a purchase against those who held under C.
According to the Constitution and laws of the United States and the decisions of this Court, the regular proceedings and decrees of a county court of Virginia are allowed the same full faith and credit in Kentucky that they would receive in Virginia. If such a decree would be enforced in Virginia, or if such a decree pronounced in Kentucky would be enforced in Kentucky, the decree of the Circuit Court of the United States sitting in Kentucky enforcing it was correct.
In January, 1821, Sarah Carrington, a citizen of Virginia, widow and devisee of George Carrington, filed a bill in the Circuit Court of the District of Kentucky stating that at October term, 1817, of the County Court of Halifax County in the State of Virginia, she, as the devisee, obtained a final decree on the chancery side of said court against a certain John R. Williams, heir at law of John Williams, deceased, that he convey chanroblesvirtualawlibrary
to her his claims, as heir to the said John Williams, to all the military lands to which the said John Williams had title or claim in the State of Kentucky. The land so claimed by the complainant consisted of one survey of one thousand acres of military land in the County of Adair and near to the Town of Columbia, No. 158; of one other survey on military warrant, of three hundred and fifty acres, situated on Beaver creek, in the county of Barren, No. 155; of another military survey of five hundred acres, situated on Beaver creek aforesaid, and in the County of Barren aforesaid, No. 227; of a location for one thousand acres of land south of the Tennessee River, and adjoining the land, or a tract, at the Iron Banks, founded on a military warrant, No. 155; of another entry or location of one thousand acres, on said warrant, adjoining the lands of Girault. She states that her testator had, in his lifetime, to-wit, at May term, 1803m of said County Court of Halifax, obtained a decree against the said John R. Williams that he should, by his guardian ad litem, John B. Scott, assign and transfer the said surveys and locations to the said George, the testator. That the said John B. Scott, in pursuance of such decree, did assign said papers to the said testator, as appears by his several endorsements on said papers. That in pursuance of the decree pronounced in her favor as devisee aforesaid, the said John R. Williams did afterwards, to-wit on 18 March, 1820, by his deeds, duly acknowledged and proven according to the law of Virginia, convey and assign to her the several tracts of land aforesaid, as fully appears by his deeds filed and made a part of the bill.
That the said John R. Williams, after his arrival at mature age, prosecuted an appeal from the decree of the County Court of Halifax aforesaid, to the Superior Court of Chancery for the Lynchburg District, where and when, upon a final decree of the latter court, the decree of the county court aforesaid was affirmed in all its parts. She avers that the said County Court of Halifax had full power, authority and jurisdiction to hear and determine, and to decree in the said cause, and to pronounce and to make all orders, judgments and decrees, which they have so made touching the premises, and she further states and avers that the said Superior Court of Chancery for the Lynchburg District had full power authority and jurisdiction to hear, determine, chanroblesvirtualawlibrary
and to affirm the decrees, orders and judgments of the County Court of Halifax. She further states that the said judgments, decrees, and orders, as before stated, stand, remain, and are in full force and unreversed, as will appear from a full, true and perfect transcript of the records and proceedings filed, and made a part of her bill. That having so obtained the decree, and obtained the possession of the assignments of the plats and entries aforesaid, and also the deed aforesaid, she had well hoped to have obtained and enjoyed the lands aforesaid, but she states that she is deprived of the benefit of her said decree and transfers by a fraudulent combination between the said John R. Williams, who resides without the jurisdiction of this Court, and a certain Samuel Brents, William Caldwell and Isaac Caldwell, citizens of the State of Kentucky, and who are made defendants to the bill. She states that the said defendants, will a full and perfect knowledge of her claim, and that of her testator, on or about 6 January, 1818, entered into a contract to purchase, for a price very inadequate and no part of which have they paid, the two thousand acres of land south of the Tennessee River, as fully appears by certain articles signed by the said defendants and the said John R. Williams of that date filed and made a part of the bill.
That the said defendant, William Caldwell, for a consideration wholly inadequate, a very small portion of which, if any, hath been paid to the said Williams, about 30 August, 1815, pretended to buy of said Williams the aforesaid one thousand acres, near the Town of Columbia, as appears by certain articles of agreement between them of that date, filed, and made a part of the bill, and that the said defendant, Isaac, was fully apprised of the fraudulent combination to cheat and defraud her, and aiding and advising thereunto. She further states that the defendant, Samuel, with a full knowledge of her claim and with a like intent to cheat and defraud her, about 31 August, 1815, entered into a contract with said John R. Williams for a part of said lands, as appears by certain articles between them of that date filed and made a part of the bill, and that, notwithstanding that she was in possession of the original plats and certificates of survey, with the endorsements thereon, of which the defendants were well advised, that they have artfully chanroblesvirtualawlibrary
contrived to obtain patents in the name of the said John R. Williams for the military surveys aforesaid, and have, as she is informed and believes, obtained to themselves in some way deeds for the whole of said surveys, and have also obtained assignments or transfers of the entries south of the Tennessee, and will, on such fraudulent assignments, obtain or attempt to obtain grants from the commonwealth unless they are restrained by the interposition of the court. The bill prays an injunction enjoining and restraining the said defendants and each of them from taking or receiving from the said John R. Williams any letter of attorney, deed, or writing touching the lands now in controversy until the matter can be fairly tried in equity, and also an order enjoining and restraining the said defendants and each of them from surveying or attempting to survey said entries south of the Tennessee River or in anywise interrupting or hindering the complainant in surveying the same or procuring a survey therefor, and also that the defendants convey and release all and any title they have acquired in virtue of any contract made with John R. Williams or otherwise, and render up possession of the lands conveyed, and for other and further relief.
The answer of Samuel Brents states that the lands in the complainants' bill mentioned were entered in the name of John Williams, and so far as surveys have been made and registered, they have been in his name. He does not admit that any valid sale of the lands has been made such as could bind John Williams in law or conscience. Since he has heard anything on the subject of a contract between said Williams and George Carrington, he has understood it was a matter of doubt whether a contract of any kind took place or not, and if any ever did take place, it was after the operation of the statute of frauds and perjuries; was merely verbal, very vague and uncertain, and not at any time reduced to writing, and consequently not obligatory on the said Williams, or those claiming under him. Should any such verbal contract appear (and he verily believes there never was any), he pleads and relies on the said statute to prevent frauds and perjuries in bar and preclusion of the said contract, and of the claim of the complainants or any person holding or claiming under the said contract. He is informed and believes that the said John Williams and the chanroblesvirtualawlibrary
said George Carrington lived many years in Virginia in the same neighborhood, and had many opportunities of consummating an exchange or sale of said lands, if any existed, but that no suit was ever brought in the lifetime of said Williams, and that the respondent is informed, and believes that the said Williams died sometime about the year 1795 or 1796, and that the suit mentioned in said bill, upon which the decree (if any such existed) was founded, was contrived after the death of the said Williams (although it is pretended that the said contract was made many years before his death), when there was no person left who was able or willing to state the true nature of the dealings between the said Williams and the said George Carrington.
He heard of a suit depending in some county court in Virginia, but heard and understood that it was founded on a contract not binding in law or equity. He states that he is informed and believes the said John Williams departed this life, leaving John Robert Williams, his son only heir at law, and that the lands in the bill mentioned descended to his said son, and that about the last of August, 1815, the said John Robert Williams called on this defendant to attend to the securement of the titles to said lands. The respondent undertook said business (the patents for said lands not having then issued) and proceeded with much care, labor, and expense and obtained patents for said lands, as far as said lands had been surveyed. Patents to a part of said lands have not yet been obtained. Two thousand acres thereof, in two different entries, had not then been surveyed, and he does not know whether they are yet surveyed. The latter two thousand acres lie below the Tennessee River in this state, and in the late purchase made of the Indians; the said lands lying in the Indian boundary, this respondent presumes is the reason why said two thousand acres have not been surveyed, registered and patented.
The respondent, on 31 August, 1815, entered into a written contract with the said John Robert Williams by which the respondent was to have five hundred acres of said lands, and that on 12 November, 1816, patents issued to the said John Robert Williams for two of the tracts in the bill mentioned, one of three hundred and fifty acres on Beaver Creek, and the other of five hundred acres, adjoining the said three hundred and fifty acres, and that in satisfaction of the contract between the said John Robert Williams chanroblesvirtualawlibrary
and the respondent, the respondent took five hundred acres out of the said two tracts, including the whole of the three hundred and fifty acres and the lower part of the said five hundred acres, and that afterwards, to-wit on 5 January, 1818, the respondent purchased the remainder of the five hundred acres aforesaid, and having satisfied and completed the payment of the consideration for said five hundred acres, embracing the three hundred and fifty acres, and one hundred and fifty acres of the five hundred acre tract, and having bought of the said John Robert Williams the balance of the five hundred acres, the respondent received a deed of conveyance for said two tracts of three hundred and fifty and five hundred acres, amounting to eight hundred and fifty acres. This deed was made, signed, sealed and delivered to the respondent, and bears date the said 5 January, 1818. And the respondent now has the possession of said eight hundred and fifty acres of land, and hopes he shall not be disturbed in the enjoyment thereof by the pretended claim of the complainants.
At the time of receiving said conveyance or at any time before, the respondent had no knowledge or information of any valid claim to said land by any other person than the said John R. Williams, who conveyed to the respondent. The respondent does not now recollect of hearing anything of the claim of the complainants before his conveyance, but had only heard that some verbal or illegal claim was set up in some bill filed in some county court in Virginia; and of which verbal claim the respondent did not conceive himself bound to take notice.
The respondent, on 6 January, 1818, in conjunction with his co-defendants, William and Isaac Caldwell, purchased two thousand acres of land lying in the Indian boundary, not then surveyed and not yet patented, and received an assignment of the said John R. Williams of said land, being in two entries of one thousand acres each; one entry, No. 7, dated 2 August, 1784, calling to adjoin the town; the other, No. 384, dated 10 August, 1784, calling to adjoin John Giralts, Richard Taylor, and James Bradley; no other title to said lands has as yet been obtained by this respondent. The foregoing statement of facts exhibits the extent of the respondent's interest in the said lands. He states that he knows nothing of the fact stated in said bill of the guardian of said John R. chanroblesvirtualawlibrary
Williams while said Williams was an infant, making assignments of the plats and certificates of said lands. If such was the fact, the respondent believes it was an unlawful act, and therefore not binding in law or equity. He knows nothing of the conveyance alleged to have been made by the said John R. Williams on 18 March, 1820. The respondent requires its production and proof of its legality and that it conveys to the complainants an interest in the lands previously sold and previously conveyed to the respondent. The deed of conveyance made by the said Williams to him is of record in the County Court Clerk's office of Barren County, from whence a copy may be had. Copies of the patents of the said three hundred and fifty and five hundred acre tracts of land may be obtained from the register's office. The complainants may easily obtain such copies, or, if it be at all material, the respondent will file the originals. The respondent protests against the jurisdiction of the court of Virginia to operate on the lands in Kentucky to compel conveyance by any act done by the guardian of said Williams, and that if the decree is only to operate upon the said John R. Williams, the title of the complainants can only be considered as commencing from the date of the alleged deed to said Sarah of 18 March, 1820, as this respondent was not bound to take notice of a verbal sale or the proceedings in a foreign court not having jurisdiction of the subject matter.
The answer of William Caldwell denies that any sale of the lands was made by John Williams to George Carrington which was valid or binding, and if any was made, it was not reduced to writing and was void by the statute of frauds, and he pleads the same statute. The answer states a proceeding by the widow of George Carrington to compel John W. Scott, the guardian of John R. Williams, to convey the land. He states some transactions with John W. Scott relative to the land, and information to have been received by a person appointed by him to make inquiry about the land, and to make a purchase of part of the land, and that an agreement was made for him with Scott and Paul Carrington for the land, but afterwards, when prepared to pay the purchase money for the same, he found Scott and Carrington had no title to the land they contracted to sell to him. Afterwards, John R. Williams came to chanroblesvirtualawlibrary
Kentucky. He consulted several of the most skillful and learned lawyers in Kentucky, all of whom advised this defendant that the said Williams would hold the land; that the claim of Carrington was null and void. This defendant did verily believe that the said John R. Williams was the only lawful owner of said land, and that the claim of Carrington was fraudulently put up to cheat an infant; that he did accordingly purchase the said land from the said Williams for the same price he was to have given the said Scott and Carrington, which was considered a full and fair consideration, and not a small and invaluable one, as falsely set forth in complainants' bill. He states that he has not been party to any suit in Virginia or elsewhere between any of the complainants or their ancestors and the said John R. Williams, and consequently, as he believes, should not be bound by any decree pronounced by the courts of Virginia in any such case. He protests against the jurisdiction of the courts of Virginia to operate on the lands in Kentucky, and if the decrees of the courts of Virginia can only operate on the person of the said John R. Williams, the title of the complainants can only be considered as commencing from the date of the alleged deed from the said John R. Williams to Sarah Carrington, 18 March, 1820, as this defendant was not bound to take notice of verbal sales, or the proceedings of foreign courts who could not entertain jurisdiction of the subject matter.
The answer of Isaac Caldwell admits the purchase of part of the land as stated in the bill from John R. Williams under agreements for the purchase of the same. As to notice of the title of the complainants and of their proceedings to establish the same, the answer states as follows:
"This defendant states that, previous to his purchase of said lands west of Tennessee, he did see the record and proceedings of the Halifax County Court, in Virginia, made in the suit decided in 1803, wherein George Carrington (the complainant's husband) was complainant and said John R. Williams, by his guardian, was defendant; that his object in examining said record and proceedings originally was to ascertain in whom the best right to said land vested, and at that time this defendant was, for several considerations, desirous that the claim set up by the complainant should prevail; but upon exhibiting a full transcript of the
record of said suit to three or four counselors in this state reputed the most learned in the law, he was advised by each of them that John R. Williams would eventually succeed under the land laws of the country against the claim under which the complainant alleges title, and that the evidence of the purchase, charged by the complainant to have been made by George Carrington of said John Williams, were not sufficient to authorize and support a recovery against John R. Williams, the heir at law."
"Under this intelligence, this defendant, believing that he was purchasing the only right by which said land could be held, entered into the contract aforesaid with said John R. Williams. This defendant calls upon said complainant to produce and file complete transcripts of the several records and proceedings of the courts in Virginia, referred to in her bill. He denies that a knowledge of the record and proceedings, in the suit decided in 1803, would amount to notice of a superior equity in the complainant, or her ancestor or devisor, or that such notice could be obtained from the bill, answer and depositions, in the latter suit, which were all the evidences upon that subject which this defendant had, at the time of his purchase aforesaid, from said John R. Williams; for these documents, instead of presenting to the mind evidence of an equitable claim, go to repel the very idea of its existence, as by the complainant's own showing in the bills and depositions, the contract under which she attempts to obtain said lands, is uncertain, illegal and void. This defendant believes that the complainant was satisfied of the vagueness and insufficiency of the decree of 1803, as she seems, about the year 1816, to have instituted another suit, founded upon the same contract, and to have abandoned the decree formerly pronounced."
"This defendant submits to the court whether his rights to lands within this commonwealth are to be thus bound by the decree of a court of another state, in a suit to which he was not party, and which decree, upon the face of the record, was predicated upon facts entirely insufficient to sustain it under the laws of this state, whatever may be the laws or rules of decisions with the courts of such other state, and if the court should be of opinion that this defendant is not bound by a decree pronounced in the State of Virginia subsequent
to his purchase, or at any rate of which he had no knowledge till subsequent to his purchase, he then hopes that the complainant may be put upon the proof of the purchase, if any, as is alleged by her to have been made by her devisor from said John Williams. He conceives that the transfer and assignment made by said John R. Williams to said Sarah Carrington in 1820 can have no relation to or sanctity attached to it on account of the decree pronounced between those parties in Virginia, as that decree could only operate and be executed upon the person of said John R. Williams -- the thing which was the subject matter of the decree being without the control of the chancellor, and not subject to the laws of this state or to be affected or operated upon by the process of this Court, and that therefore the assignment obtained by this defendant and his co-partners, being prior in time, should prevail against the pretended equity of said complainant. The defendant is persuaded that the assignment executed by said John R. Williams to the complainant was not obtained by process under the decree aforesaid, but that said complainant, being aware of the inefficacy and illegality of said decree, has confederated with said Williams for the purpose of defeating the prior and better claim of the defendants, and for that purpose had induced said Williams to execute the assignment dated in 1820. The respondent insists that if any sale was ever made of the lands in question by said John Williams to said George Carrington, that such sale was verbal, and not evidenced by any agreement or memorandum in writing, and therefore was void under the statute to prevent frauds and perjuries, upon which he relies."
Witnesses were examined in support of the allegations in the bill, whose testimony is stated in the opinion of the Court. No counter evidence was offered by the respondents.
On 21 May, 1832, the circuit court by a final decree ordered that the defendants do, by their joint or several deeds, on or before 1 July next, by a sufficient deed, or by sufficient deeds, release and convey to the complainants all right and title which they have, either jointly or severally, in the several tracts of land referred to in the bill, and included in the deeds of John R. Williams to George Carrington, and also his deed to Sarah Carrington, with special chanroblesvirtualawlibrary
warranty against themselves and all persons claiming under them, and also that they do, on or before the said day, severally or jointly, surrender to the complainants, their agent or attorney, possession of said tracts of land, and to enable the complainants to take the possession, the court do directs and order that the clerk do, on the request of the complainants, at any time after the said 1 July, issue to them a writ or writs of habere facias possessionem directed to the marshal of the district, whose duty it shall be to execute the same.
The defendants prosecuted this appeal. chanroblesvirtualawlibrary
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
This is an appeal from a decree pronounced in the Court of the United States for the District of Kentucky, directing the appellants to release and convey to the appellees, all the right and title which they hold, jointly or severally, in the tracts of land in the bill mentioned, with special warranty against themselves.
The bill filed in January, 1824, by Sarah Carrington, widow and devisee of George Carrington deceased, claims from the defendants as purchasers from John R. Williams, heir at law of John Williams deceased, who is not an inhabitant of Kentucky, and therefore not a party to the suit, all the military lands of the said John Williams lying in the District of Kentucky, amounting to four thousand acres, which land was sold, as is alleged, by John Williams in his lifetime to George Carrington, the testator of the plaintiff in the circuit court. This claim is founded on a decree pronounced by the County Court of Halifax, in the State of Virginia, sitting in chancery in November, 1817, on a bill filed in November, 1815, by the said Sarah Carrington against the said John R. Williams, and on a deed of conveyance made, on 18 March, 1820, by the said John R. Williams to the said Sarah Carrington, in pursuance thereof. This decree was affirmed on appeal. The bill also refers to a suit brought by George Carrington in his lifetime against the guardians of the said John R. Williams while an infant, in which a decree was obtained directing the guardian of the said John R. Williams to convey and assign the entries and surveys of the said military lands to the said George Carrington. The plaintiff prays that these decrees, with the proceedings on which they were founded and the conveyances made in pursuance of them, should be taken as a part of his bill.
The bill filed in the County Court of Halifax in November, 1815, charges that George Carrington in his lifetime exchanged certain lands lying in the said county with John chanroblesvirtualawlibrary
Williams deceased for a military claim of four thousand acres to which the said Williams was entitled. That the said George, by the direction of the said Williams, caused his land in Halifax to be conveyed to a certain John Camp, who was put in possession thereof, but the patents for the military lands not having been issued, no conveyance was made of the legal title to them. Sometime after the death of the said Williams, the said Carrington instituted a suit in the court of Halifax against John Robert Williams, then an infant, the only child of the said John Williams, to obtain an assignment of the entries and surveys for the said four thousand acres of military land. As the bill filed in that suit contains a full statement of the contract with a description of the lands it claims, the plaintiff prays that it may be taken as a part of the present bill as fully as if literally inserted.
On 23 May, 1803, a decree was pronounced in the said suit which, among other things, directed a certain John B. Scott, the then guardian of the said John R. Williams, to assign the entries and surveys of the said military lands to the said George Carrington so as to enable him to obtain patents therefor in his own name, and did further order that the said John R. Williams should, on attaining his age of twenty-one years, release all his right to the said George Carrington. The plaintiff prays that this decree and all the proceedings in the suit may be taken as a part of his bill. The assignments directed by the decree were made by the said John B. Scott, but George Carrington departed this life soon afterwards, not having obtained the patents. By his last will he devised these lands to the plaintiff, who has applied for patents, but is informed at the land office that the assignment of the said Scott does not authorize the register of the land office in Kentucky to issue them. The said John R. Williams, having attained his full age, not only refuses to release his claim and to assign the said entries and surveys, but has gone to Kentucky with a view of selling the said lands. The bill prays for an assignment of the entries and surveys, and a release of the right of the said John R. Williams, and that he may be enjoined from performing any act which may disable him from making a complete title to the plaintiff.
The defendant in the answer denies the contract, and adds chanroblesvirtualawlibrary
that if such a contract did exist, it was verbal, that no note or memorandum thereof was signed by either of the parties, and that it is void by the statute of frauds which he pleads.
A general replication was filed and depositions were taken, after which the following entry was made.
"And now at this day, to-wit, at a court holden for the said county at the court house thereof, on 27 October, 1817, came the parties by their counsel, by whose consent this cause was this day heard upon the bill, answer, examinations of witnesses, the bill, answer, examinations of witnesses in a cause formerly depending in this Court between George Carrington, plaintiff, and the defendant, by his guardian, defendant, and was argued by counsel, on consideration whereof it is decreed and ordered that the defendant do forthwith assign to the plaintiff in a proper and legal manner the surveys and other title papers in the original bill mentioned. The defendant having appealed from this decree, it was affirmed at a superior court of chancery held at the town of Lynchburg on 19 May, 1818."
In pursuance of these decrees, the said John R. Williams did, on 18 March, 1820, by his indenture of that date, convey to the plaintiff the military lands in the bill mentioned, consisting of one tract of five hundred acres lying on Beaver Creek; also of one other tract of three hundred and fifty acres likewise lying on Beaver Creek; also of one other tract of one thousand acres lying on Russel's Creek; also of one other tract of one hundred and fifty acres, lying on the first creek emptying into Little Barren; also of one other tract of one thousand acres, lying in the county of _____ being the tract of land entered by John Williams on 2 August, 1784, and also of one other tract of land containing one thousand acres lying in the county of _____ entered on 10f August, 1784.
The bill filed in this cause further charges that Samuel Brents, William Caldwell, and Isaac Caldwell, citizens of the State of Kentucky, with full knowledge of the plaintiff's claims, entered into a contract on or about 6 January, 1818, with the said John R. Williams for the purchase of the two tracts of one thousand acres each lying south of the Tennessee, for which entries had been made by the said John Williams in his lifetime on 2 and 10 August, 1784, and that the said William chanroblesvirtualawlibrary
Caldwell on 30 August, 1815, with full knowledge of the right of the plaintiff, entered into a contract with the said John R. Williams for the purchase of the tract of one thousand acres near the Town of Columbia in the County of Adair, and that the said Samuel Brents also, with the full knowledge of the plaintiff's title, hath entered into a contract with the said John R. Williams for the said tracts, containing five hundred acres, and three hundred and fifty acres, lying on Beaver creek, in the county of _____ and for the tract containing one hundred and fifty acres lying on the first creek emptying into the Little Barren, in the county of _____. Under these contracts and other papers obtained from the said John R. Williams, the said Samuel Brents, William Caldwell and Isaac Caldwell, who are made defendants, have obtained legal titles to the said military surveys, and have also obtained assignments or transfers of the entries for two tracts of one thousand acres each, lying south of the Tennessee, for which they will obtain patents, unless restrained by order of this Court.
The bill prays that the defendants may be decreed to convey to the plaintiff, and for general relief.
The defendants filed separate answers, each denying the contract, insisting that if any contract existed, it was by parol and consequently void by the statute of frauds, and claiming to be purchasers without notice of any equity in the plaintiff.
The several defenses are now to be examined.
The proceedings in the County Court of Halifax, in the suit brought in 1815, are perfectly regular, and, according to the Constitution and laws of the United States and the decisions of this Court, are allowed the same full faith and credit in the courts of Kentucky that they would receive in Virginia. If the decree pronounced by the court of Halifax in 1817, and afterwards affirmed in the Superior Court of Chancery at Lynchburg, would have been enforced in Virginia, or if, had it been pronounced in Kentucky, it would have been enforced in Kentucky, then the decree for enforcing it which was pronounced by the court of the United States sitting in Kentucky is correct.
The first point to be considered is the contract itself. It is not in writing, and consequently admits only of parol evidence.
Paul Carrington, the father of George, deposes that he owned a tract of land in the County of Halifax, called Dry Branch, chanroblesvirtualawlibrary
containing five hundred and ninety-six acres, the whole of which, at the close of the Revolutionary War, he gave to his son George, put him in possession, delivered the title papers, and directed him to prepare a deed. In 1787 or 1788, George requested the deponent to convey the land to John Williams, to whom he had sold it, in exchange for his military lands in Kentucky. Some little time afterwards, George requested the witness to convey the land to George Camp, to whom Williams had sold it. He conveyed to Camp. Some short time afterwards, Williams and George Carrington were both at the house of the deponent when Williams stated that he had purchased the land from George Carrington and sold it to Camp for £400. He has also frequently heard George Camp say that he purchased the land from Williams for £400. Has never heard Williams say he gave his military lands for the Dry Branch tract.
Clement Carrington has paid the taxes on the Kentucky military lands on account of the estate of George Carrington ever since they were taxed.
Nathaniel Terry was acquainted with the Dry Creek tract, and has heard Williams say he had given his western lands for it. He supposed Williams to have been in possession of the Dry Branch tract, but he never worked hands on it. Carrington did not work it after the sale to Williams further than to finish his crop.
James Eastham has frequently heard Colonel John Williams say that he had given his lands in the western country to George Carrington in exchange for the Dry Branch tract, which the afterwards sold to George Camp.
William Yancy has heard John Williams say that he purchased the Dry Branch tract from George Camp, and had given his claims to land in the western country in payment for it. He has been frequently in company with the said John Williams when this trade was the subject of conversation, and Williams always gave the same account of it. Williams sold the Dry Branch tract to George Camp.
Thomas Roberts well recollects to have heard John Williams say that he had exchanged his Kentucky lands with George Carrington for his Dry Branch tract.
The depositions of William Yancy and Thomas Roberts were taken in the suit brought against the guardian of John R. Williams, chanroblesvirtualawlibrary
but as they were filed with the bill of 1815 and read by consent at the hearing, they are supposed to form a part of the record in this cause.
No countertestimony was offered.
We think the exchange by John Williams of his military land for the Dry Branch tract is fully established, and proceed to inquire into the validity of the contract.
The statute of frauds, of which the defendants claimed the benefit, avoids parol contracts for land, and will unquestionably avoid that between John Williams and George Carrington unless the transactions between the parties take the case out of the statute. The appellees maintain the affirmative of this proposition and contend that the complete execution of the contract on the part of George Carrington by conveying the Dry Branch tract to the vendee of John Williams supplies in law the want of a memorandum in writing. For a considerable length of time this principle appeared to be firmly settled in the Court of Chancery in England. Maddock, in his Treatise on chancery vol. 1, 301, says
"If, therefore, it be clearly shown what the agreement was, and that it has been partly performed, that is that an act has been done, not a mere voluntary act or merely introductory or ancillary to the agreement, but a part execution of the substance of the agreement, and which would not have been done unless on account of the agreement, an act -- in short, unequivocally referring to and resulting from the agreement, and such that the party would suffer an injury amounting to fraud by the refusal to execute that agreement -- in such case the agreement will be decreed to be specifically performed. 2 Br.Cha.Ca. 140; 1 Br.Cha.Ca. 412; 3 Atk. 4; 2 Anstr. 424; Ambl. 586; 1 Sch. & Lef. 41; 14 Ves. 386."
This principle has been lately questioned in England, and, some of the judges have thought, has been carried too far, but it has not, we believe, been overruled.
It was undoubtedly supposed in Virginia to be the sound construction of the statute when this contract was made and as the land then lay in Virginia, Kentucky being then a part of that state, this construction forms the law of the contract. In affirming the decree of 27 October, 1817, the chancellor said, "the court being of opinion that this is not a case chanroblesvirtualawlibrary
embraced by the act against frauds and perjuries, doth adjudge, &c." A change of the law afterwards made in Kentucky cannot affect contracts previously valid.
It remains to inquire whether the appellants are to be considered as purchasers without notice of the equity set up by the appellees.
The defendants do not deny notice in those explicit terms which courts of equity require. They deny notice of a valid claim, but not such notice as ought to put them on inquiry.
They are the joint purchasers of the two tracts of one thousand acres each lying south of Tennessee River. They purchased these tracts from Williams on 6 January, 1818. The article of that date recognize the claim of Carrington's heirs and contain a stipulation on the part of Williams "to use due diligence in having it extinguished and quieted."
William Caldwell purchased the tract of one thousand acres in the County of Adair on 30 August, 1815. The contract of that date contains this stipulation:
"And the said Williams agrees that the said Caldwell shall not be bound to pay any further part of the consideration aforesaid except what is this day paid until he, the said Williams, shall settle the dispute between himself and the heirs and representatives of George Carrington deceased, concerning the title to the said land."
A contract was entered into between Williams and Samuel Brents on 31 August, 1815, by which Brents engages, for a part of the land,
"to attend to the securement of the titles to the said lands, . . . according to the laws of the state by surveying, registering, and patenting the same or by doing such other acts as may be necessary for the purposes aforesaid."
He says in his answer that on 12 November, 1816, patents issued to the said John R. Williams for two tracts on Beaver Creek, the one for three hundred and fifty acres and the other for five hundred acres. The defendant agreed to take the tract of three hundred and fifty acres, and one hundred and fifty acres, part of the five hundred acre tract, for his services. Afterwards, on 5 January, 1818, he contracted for the residue of the two tracts, for which he received a conveyance dated on the same day. The answer proceeds,
"at the time of receiving the said conveyance, or at any time
before, this respondent had no knowledge or information of any valid claim to said land by any other person than the said John R. Williams. This respondent does not now recollect of hearing anything of the claim of the complainants before his conveyance, but had only heard that some verbal or illegal claim was set up in some bill filed in some county court of Virginia, of which verbal claim this respondent did not think himself bound to take notice."
He does not recollect that the claimant was named Carrington, but he does recollect having heard that a suit was instituted in one of the county courts of Virginia; but as the contract was by parol, he did not think himself bound to notice it. Now he knew or might have known that the suit was instituted in the County of Halifax, that being the residence of Williams, whose agent he was, and who was the defendant in the suit. He could have received full information from Williams himself, who never attempted to conceal the claim. His conveyance of the two thousand acres of his claim lying south of the Tennessee River, dated the day after his conveyance to Brents, contains a stipulation respecting the claim of Carrington's heirs, showing plainly that the claim was previously well known to the parties. His deed to William Caldwell shows that it was known as early as 1815.
Isaac Caldwell's claim is limited to his third part of the two thousand acres south of Tennessee, conveyed on 6 January, 1818. In addition to the notice contained in the deed, he states in his answer that he had seen the proceedings in the suit brought by Carrington against Williams, in which the decree of 1803 was pronounced; had consulted eminent counsel on it, and had been advised that the title of Williams would prevail over that set up by Carrington. Under this advice he purchased. The record contains other evidence to which it is thought unnecessary to refer.
In addition to these unequivocal proofs that the appellants had received notice of the contract made by Carrington with John Williams, it is worthy of observation that with the exception of Brents, they purchased equitable titles, and were bound to notice any prior equity.
It is too clear for controversy that the plaintiffs placed full confidence in the protection furnished by the statute of frauds, chanroblesvirtualawlibrary
and believed that the contract made between Carrington and Williams, being by parol, was void notwithstanding its full execution on the part of Carrington.
There is no error in the decree of the circuit court, and it is affirmed with costs.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky and was argued by counsel, on consideration whereof it is ordered, adjudged, and decreed by this Court that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs.