APRIL,

1810.

Lewis

V

suit, it is essential that Rowland Madison's heirs should be parties, whether he died insolvent or not; for they are interested in the question concerning this land, the title to which is derived from him. Besides, the derivative pur- Madisons. chaser has, universally, a right to the assistance of the vendor, or his legal representatives; because they can prove whether the contract was discharged or not. They cannot

428. Harrison

H. & M. 316.

be examined as witnesses, because they are interested; and the rule is universal that, where, on the ground of interest, a person cannot be used as a witness, he must be made a party.(a) If Lewis, on being cast, were to sue the heirs (a)1 Call, of Rowland for compensation, they might yet prove against v. Harrison, S him, that Rowland satisfied the contract to William; for, not Hoover being parties to this suit, they would not be bound by it. Donnelly. But he should not be driven to this alternative; for a Court of Equity abhors circuity of action, and ought to prevent multiplicity of suits. (b) There was no necessity of a demurrer for want of parties; for in Call v. Scott, and Hoover Knight, How.

v. Donnelly, there was no demurrer. (c)

V.

(b) 3 P.Ws

333. Knight v.

Excheq. 216: Harr. Ch. Pr. 35. (last edit.) 16 Viner, 248.

Tuesday, May, 29th. The Judges pronounced their pl. 6. Call v. opinions.

Judge TUCKER, after reciting the terms of the agreement between William Madison and Rowland, proceeded as follows:

To this contract Gabriel Madison, a third brother, was the only subscribing witness. It was proved by him and recorded in Lexington District Court, State of Kentucky, Sept. 18, 1800, almost twenty years after its execution, and six months after this suit was brought.

On the same day that this contract was entered into, Gabriel Madison agreed to let Rowland have land in Kentucky, under the proclamation, to enable him to comply with that contract. William was privy to this agreement, and afterwards (as Gabriel thinks) made choice of 1,000 acres on Simpson's

Scott, (MS.) (c) See also 16 Viner, 267.

pl. 1.

APRIL,' 1810.

Lewis

V.

Madisons.

Creek, in a letter written to Gabriel, who had 3,000 acres in
Kentucky, of which William was to have choice.

On the 14th of July, 1781, William Madison conveyed to John Gordon, 1,000 acres of land on Boon's Creek, Kentucky. This, it is said, is the land which Rowland Madison had, previously to the above-mentioned contract, sold to John Gordon, without any authority from William, and received some trifling consideration for, from John Gordon. But the consideration expressed in the deed, is one hundred pounds, current money of Virginia, in hand paid by Gordon to William. No other, or further consideration is mentioned.

On the 5th and 6th of November, 1781, John Craig and wife, by deeds of lease and release conveyed to William Madison, four hundred acres of land in Montgomery County, Virginia, called Hand's Meadow. This land is said to have been given by Craig to Madison, in exchange for the 1,000 acres on Simpson's Creek, which Gabriel, in behalf of Rowland, was to furnish William with; but the consideration expressed in the deed of release is 400/. current money of Virginia, by Craig to William in hand paid. Hugh Crockett states, that he understood from both Craig and Madison, that the Simpson's Creek land, and 1257. specie, were to be in full of this land; that, since William's death, (which happened in March, 1782, and in the life-time of his father,) he has understood and believes, one Hite had established a better title to the Simpson's Creek lands; that Craig, in his presence, applied to Gabriel, in whom the legal title, under which William claimed, was, to make him a deed, which Gabriel said he could not do, but would give him in lieu of it 1,000 acres on the Ohio; which offer Craig refused, and has since informed the witness that he had got the Hand's-Meadow tract back, and was in possession of it; though the witness understood the legal title thereto is still in William Madison's heirs, the present complainants.

In March, 1782, William Madison died intestate, and the bill charges that Thomas Madison, William Preston, and the

defendant Andrew Lewis, took out letters of administra-
tion on his estate, and of course that they possessed them-
selves of and examined all his papers, among which the
agreement first mentioned was, which was by no means a
secret in the family. The answer denies that William's pa-
pers were ever in the defendant's hands; alleging that they
were delivered to Thomas Madison, by William's widow;
he, Thomas, having signified the advantage of his keeping
the papers, as he was a practising lawyer.

In March, 1784, or before, John Madison, the father of
William, Rowland, Gabriel, and Thomas, died. By his will
he devised to his wife the plantation whereon he then lived,
during her life. And, as to the lands whereon he then li-
ved, and whereon his son William lived, he devised the up-
per part, whereon he then lived, to his son Rowland, in fee-
simple; and the lower part, whereon William lived, to Wil-
liam's widow for life, with remainder to the present com-
plainants. The upper part, thus devised to Rowland, forms
the subject of the present controversy.

The bill charges, that at the time of the agreement en-
tered into between William and Rowland, as before stated,
it was well known among the brothers, and others, that their
father intended to devise that part, called Voss's, to Row-
land in fee; and that it was this identical land which Row-
land bound himself to give William in recompense for the
Boon's Creek land, (which he had sold, as stated in the
agreement,) in case he failed to comply with his engage-
ment, to make William a clear and undisputed title to 1,000
acres of military lands: that John Madison, the father, was
acquainted with the existence of this contract, and by no
means disapproved of it; as in a will of an early date he
had devised the same lands to Rowland, and, though shortly
before his death, he altered his will in some other respects,
he continued that devise to Rowland; that the defendant,
Andrew Lewis, had married a sister of William and Row-
land, and was unusually intimate with them and their af

APRIL, 1810.

Lewis

V.

Madisons.

APRIL, 1810.

Lewis

V.

fairs, and very high in their confidence and that of the family; that he qualified as administrator of William, as before mentioned, and acted as such in a variety of instances; Madisons. whereby, and by reason of his intimacy and connection with the family, he must have been acquainted with the agreement before mentioned; and, but for the grossest negligence, might have known of William's title to the land bequeathed to Rowland by his father; notwithstanding which, he purchased the same of Rowland; and the bill suggests, as a motive thereto, that a great part of the purchase-money consisted in a debt or debts due to him from Rowland, who was, at that time, in circumstances which threatened he would break, and who, since the purchase, actually became insolvent, after having removed out of the State so that Lewis believed he had no other mode of securing his debt, but by that purchase; that after the purchase, and before any conveyance was made from Rowland to Lewis, Elizabeth Madison was appointed guardian to her daughters, and gave Lewis notice she would institute a suit for Voss's, (the land in controversy,) as she was satisfactorily advised Rowland could not make a title to 1,000 acres of military land in Kentucky; notwithstanding which, Lewis paid up the balance of the purchase-money to Rowland; that Rowland never did tender or survey the 1,000 acres of military lands, which might have been substituted for the Virginia lands, according to the agreement; and that the Kentucky land is worth from 3,000 to 5,000l., and would be preferred by the complainants, under existing circumstances.

The answer of Lewis states the devise to Rowland, as made in pursuance of a promise made when he was about to marry; that Rowland, who, at his father's death, (early in 1784,) resided in Kentucky, returned and settled on Voss's, and resided there till 1790: that being desirous of removing again to Kentucky, he proposed to sell Voss's to the defendant, who, believing the title derived from his father was a good one, free and clear from all encumbrances, purchased it at the price of 2,000l.: he admits that about 300%. of the

APRIL,

1810.

Lewis

purchase-money consisted of a debt due from Rowland to himself, but denies the motive was to secure that debt, as Rowland was then solvent for a much larger sum. He obtained possession in 1790, having made payment to the Madisons. amount of about 1,875% including the above debt; the sum of 1257. being left in his hands towards discharging a debtof Rowland's." And in that situation the case remained until some time in the year 1792, when, to his surprise, the complainant Elizabeth informed him of the contract mentioned in the bill." He positively denies that he had any notice of the contract; for, although he was one of William's administrators, and took some care of the estate until the sale, yet his papers were never in his hands, but were delivered to Thomas Madison by his widow, the complainant Elizabeth; that although Thomas Madison drew the articles of agreement between the defendant and Rowland, and the bond for a title, yet he gave him no notice of the contract between William and Rowland, as he could have proved if the suit had not been delayed till after the death of Thomas; and believes it was kept a secret from their father. He admits that, after the notice given him in 1792, as before stated, he did, in pursuance of an award, pay to Rowland, 1751. or thereabout, and received his title; being, as he supposed, the most prudent course for him to pursue.

Rowland Madison's bond to Lewis to make him a title to Voss's, bears date December 5, 1789. He removed to Kentucky, as appears by the deposition of William Lewis, in October, 1790. Another witness, Hugh Crockett, proves, that Mrs. Elizabeth Madison, the guardian of the complainants, and widow of William, rode with Rowland and his wife 15 or 16 miles, when they set out on their journey to Kentucky; and this it is stated happened the day before the payment, either of the balance of the purchase-money, or of the principal part of it, (for it is not quite clear which is meant, though I rather think the balance,) by Lewis to Rowland. Lewis's answer fixes the period when he first