490. MARCH, 1810. Blair Owles. Archibald Blair appealed, and, on the petition of the appellees addressed to this Court, the appeal was taken up out of its turn on the docket. Williams, for the appellant, contended, 1. That Blair had no notice at the time of the purchase. His answer, positively denying such notice, is contradicted by one deposition only, which (being that of one of the bargainors) ought not to have been admitted as evidence. 2. The notice given him by Vandewall, coming from a (a) Sugden, stranger to the contract, ought not to affect him. (a) When he made inquiry into the subject, William Price, sen. who had sold him the land, denied the right of Charles Price to devise or encumber it; but, for his satisfaction, procured William Price, jun. the administrator, to join in the deed, in which they convey the land "free from the claim of all persons whatsoever." If, then, he were considered as a purchaser with notice, the two Prices were bound to make good the title to him. Therefore, (b) See 1 Vern. 110. Atk. 51. 3. William Price, sen. executor of Barret Price, ought to have been a party to the suit,(b) and he and William Price, jun. administrator of Charles Price, should have been decreed to pay the money, to prevent circuity of action and future litigation; and according to the rule of equity that the Court should make him pay that ought to (c) Mitf. 144. pay.(c) So, in a bill against a devisee, you must make the (d) 1 Willes, heir a party, upon the same principle.(d) If, however, I should be mistaken in this, 220. 51. Gawler v. Wade. 4. The decree should not have been against Blair personally, but against the land in his hands; for, perhaps, the land may not be worth the money. A purchaser with notice is not personally bound, but the land is bound; and on that principle the decree must be reversed. Warden, contra. The will of Charles Price, recorded eight months before the purchase, was sufficient notice to all the world of the encumbrance, and especially to Blair, 1810. Blair V. Owles. on Mort. 462. who bought, of William Price, the administrator with the MARCH, will annexed, and could not make out his title without referring to the will; for, where a purchaser cannot make out his title but by a deed which leads him to another important fact, he must be considered conusant of it; for it is crassa negligentia that he sought not after it.(a) The de- (a) 1 Powell position of William Price, sen. was admissible, because, 465. 2 Chan. although he joined in the deed, the land was not in fact Vern. 319. purchased of him, but of the administrator of Charles Dunch v. Price, (as the same deposition proves,) and he was Blair's agent in bidding for it. A circumstance in the answer shews this: Blair says, that he purchased by a friend, taking care not to mention his name; now William Price, sen. comes forward, and says he was that friend. . Daniel Vandewall was not a stranger, but guardian of the claimants: the notice from him was therefore good; for, though after the purchase, it was before the deed was made, and that is enough. Nicholas, on the same side. The answer does not posi tively deny notice; but rather admits it by the evasive mode of denial, containing a negative pregnant. The notice to William Price, sen. by the crier at the sale, being to Blair's agent, was sufficient to bind him.(6) As to the question of parties; I admit that all parties necessary to the decision of the question should be before the Court, but not persons eventually or remotely interested, or against whom the defendant can only have a claim founded on his having been compelled to pay the money. If any person set up a claim to this land, such person ought to be a party; but the circumstance that the defendant took a writing of indemnification from William Price, sen. does not render it necessary to make him a party. With respect to the object of the decree; Blair, being a purchaser with notice, ought to be considered as personally liable, at the election of the plaintiffs; and, in case of his mability, (which is not pretended,) the land should be lia Cas. 246. Kent. 1 (b) Sugden, 492. citing a number of authorities. MARCH, 1810. Blair V. Owles. ble. The decree is not indeed in this form; but, being substantially correct, ought to be affirmed. Saturday, March 17. The Judges pronounced their opinions. Judge TUCKER. From the state of facts contained in the answer of the defendant, Mr. Blair, in the original suit, I think he was clearly a purchaser with full notice of the defendant's claim to the right of firewood from the land which he purchased. This notice he had before a conveyance was made to him; and, from the conveyance itself, it appears that he paid only half the purchase-money at that time, giving security for the payment of the other half at a future day. This brings the case fully within the authorities cited in 2 Fonb. b. 2. c. 6. s. 2. n. (¿), s. 3. n. (m), b. 3. c. 3. s. 1. n. (b). I am therefore of opinion that the decree should be affirmed. Judge ROANE. I am of opinion that the decree should be affirmed. It was objected, that the executor of Barret Price should have been a party; but, from facts disclosed in the answer of Blair himself, as well as from other testimony, it appears clearly that he was a purchaser with notice of this encumbrance. I should have had doubts whether the lien should not have been confined to the land, had it not appeared that Blair refused to give the plaintiffs permission to enjoy the benefit of the firewood. Judge FLEMING. There appears to have been sufficient notice, without recurring to the answer of BLAIR. It is the unanimous opinion of the Court, that the decree be AFFIRMED. Ward against Johnston. Tuesday, (as well as bond with col tion If there condition it formed, the ed should be pay the penal THIS was an action of covenant, brought by James (1. Covenan Johnston against William Long and William Ward, in the debt) lies on a County Court of Greenbrier. The declaration charged lateral condi "that, whereas the defendants, on the 30th day of Sep- be no stipulation, by artitember, in the year 1794, at the County aforesaid, cove- cles, or in the nanted to and with the said plaintiff, under the penalty of self, that it four hundred pounds, to which they signed their names shall be perand affixed their seals, in the words and figures following, breach assignto wit: The condition of this obligation is such, that the failing to whereas the above-mentioned William Long hath this day but, where bargained with and sold unto the above-mentioned James tion is either Johnston, a certain tract of land, lying in the County of expressed or implied, the Greenbrier, on the waters of Culbertson's Creek, formerly failing to perknown by the name of Murphy's Place, containing three dition may be assigned as hundred and sixty-four acres, more or less; if, therefore, the breach. the above bound William Long and William Ward, his security, doth make unto the said James Johnston, his heirs, joint and seexecutors or assigns, a clear deed in fee-simple to the said veral tract of land, at or before the next May Court held for described as a such stipula form the con 2. A co-0bligor, in 3 bond, may (though security) be considered as stipulating for the performance of the condition; the words being "if the above bound L., and W. his security, shall, &c. then this obligation to be void," &c. 3. Where two defendants have appeared and pleaded, an entry in the record "that the parties came, &c. and the defendant L. acknowledged the plaintiff's action, and therefore judgment against the said defendants,” must be understood as a judgment against both on the confession of one, and therefore erroneous. 4. In reversing the judgment for that error, the Court ought to direct the proper judg ment to be entered against the defendant who confessed, as well as further proceedings against the other. 5. In such case, the plaintiff having, after the judgment, moved for permission to proceed against the security; and it appearing, by a bill of exceptions on this motion, that the judgment had been confessed by virtue of an agreement (to which the security was not a party) that a stay of execution should be allowed the principal, the Court, in reversing the judgment, ought to have given the security leave to plead puis darrein continuance; all the proceedings having been brought up by a writ of supersedeas. 6. Several judgments and orders, relating to each other, may be brought up by one writ of supersedeas; provided the whole be sufficiently described, as intended to be compreWended therein. 7. Quare, whether a security is exonerated at law, or in equity, by the plaintiff's aceepting a confession of judgment from the principal, and granting him a stay of execution by an agreement to which the security was not a party? 1810. Ward V. MARCH, Greenbrier County, then this obligation to be void, otherwise to remain in full force and virtue, which obligation is here shewn to the Court; and the plaintiff in fact saith, Johnston. that the said defendants, although often required, did not, on or before the May Court thereafter the date aforesaid, nor at any time, make and deliver a deed to the plaintiff as therein mentioned, but the same he hath and still do refuse to make, to the damage of the plaintiff, four hundred pounds, and therefore he sues." The bond exhibited was in the usual form of a joint and several bond, with a condition corresponding with that set forth in the declaration, except that a proviso was added in these words; "provided that, if default be made by the said Long, the said Johnston doth agree to take the sum of two hundred pounds like money as aforesaid, with lawful interest from this date." The defendants jointly pleaded "conditions performed;" but, afterwards, " at a Court held on the 31st of August, 1797, came the parties by their attorneys, and the defendant Long, acknowledgeth the plaintiff's action. Therefore, it is considered by the Court, that the plaintiff recover against the said DEFENDANTS, two hundred pounds, the debt in the declaration mentioned, with interest from the 30th of September, 1794, and his costs," &c. Execution issued on this judgment against both defendants; and, while it was in the Sheriff's hands, to wit, on the 30th of May, 1798, the County Court, on the motion of Ward, quashed the execution as to him; leaving it to have its effect against Long. The next day two motions were made by the plaintiff; first, that the order of the preceding day, quashing so much of the execution as related to William Ward, be rescinded; and, (this being refused by the Court,) secondly, "to revive the proceedings as to the other defendant:" both which motions were overruled with costs, and exhi bited by a bill of exceptions. On the same day last mentioned, the plaintiff farther moved the Court" to enable him to proceed to judgment against Ward; it appearing |