Equity. — The bill, and Wilson's answer, stated, that John Carmack had an entry of 300 acres on Big Creek, in Hawkins county, made in the year 1779, which Wilson purchased; and for a full and valuable consideration sold 150 acres on the 1st day of September, 1787, to Joseph Bishop, his son-in-law, being the place whereon Bishop then lived; for which Wilson gave his bond to Bishop on the same day, to make a title as soon as a grant could be obtained. Bishop continued to hold possession of the land. Wilson obtained a grant for the 300 acres, dated the 29th of July, 1793. On the 10th of November, 1784, Wilson gave a bond to Jonathan Langdon, for 400 acres of land; judgment was obtained upon this bond in Hawkins county, in February, 1799, for about $1,200, for the benefit of the defendant Tillery. Garner also obtained a judgment against Wilson in the district of Mero, in May, 1801. Execution issued on both judgments, and the defendant, Tillery, became the purchaser of the land in *Page 275 dispute, under both judgments. Under the first, a purchase was made at sheriff's sale, in 1803, for the sum of five dollars; and in August, 1802, under the last, the defendant Tillery purchased for the sum of one hundred and one dollars. In consequence of the sale under the first judgment, a sheriffs deed was obtained, dated September 11, 1805.
The bill further charged that the plaintiff purchased the bond from Wilson to Bishop on the first day of January, 1801; that he took the bond with him, and applied to the defendant. Wilson, for a title; upon this application Wilson complied with the bond by conveying to him 197 acres, being the place where Bishop lived; but as there had been no survey it had been previously agreed by Wilson to convey all that part of the land which lay on the north side of the creek, more or less, in discharge of the covenant. It turned out to be 197 acres; that he gave for the bond $1,200, and took possession from Bishop, which he has continued ever since.
An action of ejectment had been commenced by the defendant, Tillery, against the plaintiff, and judgment therein for the plaintiff, — prayer for an injunction and relief.
The defendant, Tillery, in his answer, admits the judgments, executions, his purchase at sheriff's sale, and recovery on the sheriff's deed in ejectment, — denies that he had any knowledge of this covenant to Bishop at the time he purchased, as charged in the bill. He does not know when Bishop took possession under the covenant. About the first of January, 1801, he was informed that Bishop was in possession, but as he was son-in-law to Wilson he expected he was there by courtesy, and not by claim to the land; he does not believe Bishop ever paid any thing for the land, —that Wilson once offered the same land, Bishop then living on it, in part of Langdon's judgment, which was his property. Bishop never pretended to hold against the judgment, and the plaintiff had offered to buy it of this defendant if he should hold it. Insists there is no transfer of the bond from Bishop to the plaintiff, and believes in reality the plaintiff purchased from Wilson, and not Bishop, after the judgment was obtained, but conceals it in *Page 276 order the better to prevent the judgment from overreaching his purchase. He does not believe the covenant covers the same land the deed calls for, one is for 150 acres, the other for 197 acres; nor does he believe the covenant is for part of the land called for in the grant; the first calls to lie on a branch of Big Creek, the latter on both sides of Big Creek.
It was further insisted by the answer, that, if there was such a bond, it ought not to affect the defendant, who was a purchaser at sheriff's sale for a valuable consideration without notice; and, at the time he purchased, believed he was getting a good title; that, in the year 1801, Wilson was indebted more than he was worth; he was insolvent, and the plaintiff, or any person, must have known, that, under the circumstances of Wilson's embarrassment, any conveyance from him at that time would be considered fraudulent; particularly relies on there being no assignment of the bond to the plaintiff; on a deed from the sheriff, under Garner's judgment, dated September 11, 1805.
Absalom Looney, Michael Looney, Jesse M'Williams, and William Payne proved among them, that, about the time Wilson gave his bond to Bishop, he paid him two horses, which was understood to be the consideration. The price of land was then low, no money in the country, and what land was sold was for property; the price of the land appeared to be small, but at that time, and for a long time afterwards. Wilson was in no way embarrassed in his circumstances, and never was supposed to be declining in his affairs until after Langdon's judgment was obtained. Payne, one of the witnesses, said, that he was not supposed to be insolvent until the year 1799.
Joseph Bishop was offered as a witness for the plaintiff, — this was objected to on the ground of interest. The Court permitted him to be sworn, as this was a question before the Court, and not a jury; they preserved to themselves the power of rejecting it if necessary, upon principles of law. He stated the covenant, payment of the two horses, that the land was cheap; he exchanged this land with young Samuel Wilson, his brother-in-law, giving up the bond to *Page 277 him, who, as he understood, immediately sold it to Richard Mitchell, and Mitchell to the plaintiff; the bond, as he understood, went with the sales. He had been living on it since 1787. Samuel Wilson, Jr., told him to give up the bond to the plaintiff; he did so, but never saw the covenant since he parted with it to Wilson till now.
The Court rejected this witness upon the ground that he might be liable for the consideration received by him in case the land were lost.1
1 In the rejection of Bishop's testimony, I am strongly inclined to think the Court erred. If a person sell real property, making a deed without warranty, he can be a witness respecting the land. 1 Str. 444; Doug. 654; 6 T. 606. It appears from the best authorities that he is not liable, neither for the value of the land nor consideration received. See Sug. on Vendors and Purchasers. Bishop, it seems, did not make a deed, he barely parted with his right to the bond, without any contract respecting it whatever. In doing so without suggestio falsi or suppressio veri, it cannot be seen how he would be liable in any form of action or in any event. The assignment of an unnegotiable chosein action creates no other liability than would arise from an implied warranty that the demand was a subsisting one. See Add. 56, 269; 1 Dall. 444; Add. 10; 2 Johns. 179; 1 Caines, 17; 3 Mass. 559; 4 Mass. 41. In the course of this argument, which has been lengthy, a preliminary question *Page 282 presents itself towards its conclusion, Whether the Court can determine any matter of fact averred by the bill and denied by the answer, without the intervention of a jury? It seems to us that we can. The acts to which we must advert for information on this subject are, 1782, c. 11, 1801, c. 6. It never could have been the intention of the first act that every point of fact contained in the bill and denied by the answer should at all events be tried by a jury. Such a proceeding would produce so much perplexity and difficulty that a court of equity, instead of contributing to the public good, would operate in a different direction. Common sense, then, would suggest that issues must relate only to such facts as should be thought by the Court material. The Act of 1801, c. 6, §§ 36, 40, were intended to regulate the mode of selecting these material points. Under the Act of 1782, things in this respect were left in too vague a state, and it was found that great dispute and delay arose from the mode of determining what should be considered material points in a cause; these disputes too generally embarrassed a cause upon the hearing; thus fatiguing the minds of the Court and jury with mere preparatory questions. The 36th section of the act makes it the duty of the attorneys on different sides to agree upon issues themselves as to these material points; and if they cannot agree either may apply to a judge, giving him copies of the bill and answer, whose duty it shall be to examine them and make issues upon such parts of the pleadings as he may deem material. If all this shall have been omitted, and the Court, upon final hearing, shall doubt as to matters of fact, they may, ex officio, order issues to be triedinstanter. In this process the trial by jury is carefully preserved, as either party may apply to a judge upon such material points as he may suggest; and no doubt, if such suggestions be of pure matter of fact, they never would deny an issue.
It has been several times determined since the Act of 1801, that, upon the final hearing, no issues are to be made, except to satisfy the Court. It is of great importance in the doing of business that this should be the case, for it would be useless to have an issue *Page 283 of fact if the testimony were altogether on one side; or suppose no proof on the side of the plaintiff, where a fact is denied in the answer, agreeably to the established law, the plaintiff cannot have a decree. What benefit could arise from having a jury? Suppose you have one, and they find for the plaintiff without any proof, contrary to an established principle of law, would the Court be bound by it? They would not. Nay, they would be obliged to grant a new trial. If contrariety of evidence should take place on the hearing, leaving the fact in a state of uncertainty, then the Court would be obliged of course to order issues instanter, but not otherwise.1
ORIGINAL NOTE. — In the case of Pember and Wife v. Mathers, 1 Bro. C C. 52, anno, 1779, Lord Chancellor Thurlow observes, "I take the rule to be, that where the defendant in express terms negatives the allegation of the bill, and the evidence is only one person affirming what has been so negatived, there the Court will neither make a decree nor send it to law." Mr. Sugden, in his treatise respecting vendors and purchasers, a modern work of merit, page 505, in reviewing the authorities on the subject before us, and particularly the case referred to, which he admits to be the settled law, remarks, that the practice had formerly been to permit the reading of an answer upon the trial of an issue out of chancery, but since the uniform adherence of the Court to the principle referred to in Lord Thurlow's opinion above, it had been considered improper to read the answer upon such a trial. There can be no doubt that the practice in England has been uniform since the case of Wakelin v. Walthal, anno, 1679, 2 Chan. Cas. 8, not to make a decree upon the testimony of one witness alone, when opposed to the answer, whether a trial at law had taken place or not. It is however understood, that, after trial at law, the Court would decree if there appeared circumstances to aid the testimony of the witness. But when those circumstances were strong and convincing, the chancellor decreed without a trial. In ordinary cases, issues are never ordered by the Court unless where doubt exists. This is believed to be law here. It seems important to the happiness of society that an answer should not be overturned by the testimony of one witness, otherwise a man who had bonâ fide closed a transaction, as he thought, by conforming to the principles of justice and to settled legal principles and forms; relying on those principles and forms as furnishing evidence of the correctness of his conduct would be under the necessity of proving, by witnesses, that correctness when called on in a court of equity, if an unprincipled person were procured to swear falsely. The solemnity of a deed in such a case would of itself have no effect; a witness to a transaction may have died or removed; and if a person's own answer upon oath, respecting the uprightness of his conduct in the acquisition of his acknowledged rights, were not equal to a single witness, the security of honestly acquired property, and quiet of society would be greatly endangered in the existing state of the world. See 2 Atk. 19; 3 Atk. 407; 1 Ves. 95; 3 Ves. Jr. 478; 9 Ves. Jr. 284; 1 Smith, 219; Hen. Mun. 372; Com. Dig. tit. Chancery X. 4 v.; 1 Call, 224; 2 Wash. 530, 544. *Page 284
Our next inquiry is respecting the covenant of S. Wilson, in the year 1787, to Bishop, But it is urged, that at the time Wilson gave this bond, he had no light to the land, not even an entry. It is true no entry has appeared, though stated in the bill; we must therefore assume the position, that he had not a right to the land, when he gave his obligation to Bishop, but we are all of opinion, as it respects the parties before us, the moment he obtained the grant, in the year 1793, this covenant fastened on it, and was as obligatory upon Wilson as if he had an entry or grant when it was given. If the bond was merely colorable, and intended to defraud creditors or others, it is certainly void, but there is no kind of evidence of this. It is clear beyond a doubt that this bond was founded on a bonâ fide consideration, whether it were adequate to the value of the land is not for this court to say. It was valuable, and as Wilson was not embarrassed in his circumstances then, nor for many years afterwards, no evidence of fraud appears. Under these circumstances, Wilson had a right to take more or less for his land, and whether he sold to his son-in-law or to another made no kind of difference. That the Court have nothing to do with the adequacy or inadequacy of a consideration when the contract was in good faith, may be ascertained from the authorities.1
The effect of Langdon's debt will next be considered. No person will say that the bond to Langdon for land elsewhere was any lien on the piece now in dispute. The whole dispute will then lie between Laugdon's judgment and Bishop's bond; the judgment was only a general lien, it did not bind any specific tract. Bishop's bond was a specific lien, a valuable consideration having been paid therefor, and from its date, Wilson, in the eye of a court of equity, *Page 285 was merely the nominal owner; Bishop in reality was the owner, having paid for it, the vendor was only a trustee for the vendee. 1 Eq. Cas. 679, pl. 5, and authorities there quoted. Therefore, Langdon's judgment did not bind this land, in the hands of Wilson; the 150 acres we mean.1
It is further objected there is no evidence showing that the plaintiff is the purchaser of the bond for a valuable consideration; the Court, under the circumstances of this case, do not think any further evidence than appears, necessary on this ground. It appears the plaintiff exhibited the bond to the Court, and it is appended to his bill; this to us is evidence of ownership, 1 Eq. Cas. 229, pl. 10.2 By our law, Act 1801, c. 6, § 54, it is lawful to transfer these choses inaction. Young Wilson purchased the bond of the obligee, and by his directions it was delivered to the plaintiff. At least, since our Act of 1801, the evidence is sufficient, and it is not such a contingent interest as would render it necessary to make other proof of consideration paid. What amount of consideration he paid for it is unimportant, or whether Bishop or any other person gave it to him, having the right, the valuable consideration which Bishop gave is attached to it.
It has been further objected that the plaintiff purchased with notice of Langdon's judgment; that is never presumed, there must be proof of express notice, constructive will not do. 2 Fonb. 155-157 innotis. Admitting, however, that the plaintiff had notice of this judgment, it would not hinder him from buying the land from Bishop. If Bishop's claim were good, there was nothing immoral in buying it.
But it is contended, the Court are precluded from inquiring, whether Bishop paid the consideration by the deed from Wilson to the plaintiff. This court will not receive evidence to Contradict a deed, but they may receive evidence as to the consideration, which will be compatible with it.3
Though Wilson might have received the consideration of Bishop for the bond, his bond was still out, and whoever delivered it up to him paid the consideration in effect to him, and nothing is more common in such cases than to state in the deed made to *Page 286 the assignee or holder of a bond, the receipt of the consideration of him.
It is strongly insisted that if the plaintiff prevail in this case the situation of creditors will be injuriously affected, — far otherwise it appears to the Court. Though articles or a bond be an inferior lien to a mortgage, it is a higher one than a judgment, which is only a general security, and binds no particular tract as a bonâ fide bond for a valuable consideration does; and if either a creditor or bonâ fide purchaser by bond, must lose, it is surely much more reasonable that a person who has contracted upon the personal credit of another should lose than one who had paid for the specific land.
We lay it down as a general principle of law that the purchaser of land under an execution takes it subject to the same equity it was subject to in the hands of the debtor previous to the judgment. Actuslegis nemini facit injuriam.
The plaintiff is entitled to 150 acres called for in the bond, and no more. Let a surveyor therefore be appointed to make a survey of the 197 acres, and make report thereof to the next court by plat; in this way the Court will be enabled to lay off the 150 acres in some regular form to suit the plaintiff, and decree him a right therefor.
1 See 1 Hen. Mun. 93, 372; 1 Wash. 337; Caines' C. E. 96; Littel, 32; 2: Gould's ed. Esp. N. P. 362.
1 6 East, 257; 2 Lev. 70; 1 Atk. 188, 190; Cowp. 705; 8 Term Rep. 529; 1 Fonb. 116-119; 1 P. W. 277; 2 Pow. Cont. 78.
1 1 Wil. ed. Bac. Ab. 113, n.; Kaim's Pr. Eq. 324, 325.
2 See 4 Johns. 461.
3 See 3 Term Hep. 474; 1 Ves. 366; 1 Eq. C. 232, pl. 7, 8; 4 Mass. 135; 4 Hen. Mun. 113.