Dissent of
Chief Justice Bibb.This .controversy grows out of a sale by Bowlin and wife, of an interest claimed by them in Thomas Spilman’spart of the land in the. following entry, survey and grant.
“March, 2d, 1784.
Patty Harris and Thomas Spilman, assignee, William Tapp and Elias Barbee, assignee, John Sudduth, assignee, Stephen Jett, John Porter, Benjamin Withers, Isaac Arnold, Spencer Graham, Jesse .Smith, Thomas Massie, Jacob Nay and Charles Morgan, assignees, enter 17372 acres of land, on treasury warrants, Nos. 19,322, 18,878, 19,169, 18,880, ll',047, 19,186, 17,466, 18,874, 12,006, and 15,536; each to hold in proportion to their respective quantities mentioned in said warrants, beginning at,” &c.
Grant to líacrís,Spil“ian’ °* Suits between Hams, Spilgowlin and others, Artioles of between*11 Bowlin &c. and Spilman.Upon this entry a survey was executed, on the 21st April, 1785, in the names of the persons described in the entry, and on the 14th May, 1795, a grant issued in consideration of the ten warrants, by their numbers corresponding'with the entry “unto Patty Harris and Thomas Spilman, assignee of William Tapp and Elias Barbee, assignee of John Sudduth, assignee of Stephen Jett, John Porter, Benjamin P. Withers, Isaac Arnold,. Spencer Graham, Jesse Smith, Thomas Massie, John Coons, assignees of Jacob Nay and Charles Mor gan, assignee, &c. a certain tract or parcel of land, containing 17,372 acres, by survey, bearing date the 21st day of April, 1785,” after giving the description of the land, according to the certificate of survey, the grant of the Commonwealth is, “to have and to hold the said^tract or parcel of land, with its appurtenances, to the said Patty Harris and Company, and their heirs forever: in witness whereof,” &c.
Upon this claim of Patty Harris & Co. a suit in chancery was instituted against Pollock and others, and a suit had been instituted likewise by Halbert and others, on the entry upon which Harris & Co. depended, against Fowler, and both of these suits coming up upon appeals, were heard together and decided on the 25th May, 1814, (as reported in 3rd Bibb, 384.) By this decision the entry of Patty Harris & Co. was sustained as a special location, the survey was declared to be conformable to entry, and the settlement and pre-emption of Pollock were declared vague, and, therefore, to yield to the claim of Patty líarris & Co. the complainants in that cause.
On the third of October, 1816, by an article of agreement between Pollock and Bowlin, it was recited, “that, whereas the said William Bowlin, in right of his wife, Sally, late Sally Spilman, daughter of Thomas Spilman, one of the persons named in an entry of 17372 acres of land, made in Kentucky on the second of March, 1784, in the name of Patty Harris & Co. on Hinkson’s Fork” — claimed a moiety of said Spilman’s interest in the said *36entry* Survey and grant; said Spiinian’s interest béf* ing twenty-four hundred and forty five acres, the half of which said Bowlin and wife claimed; therefore, in consideration of two thousand dollars, to be paid at the times and in equal payments as set forth in the agreement* by Pollock, Bowlin agreed to convey to Pollock his wife’s interest, “with special warranty against the claim of said Thomas Spilman and his heirs, and all persons claiming under him” — and it was further agreed, that Pollock should give his two notes for one thousand dollars each, payable at the stipulated periods ; that Bowlin and wife should conveytheir interest to Pollock, and that Pollock should execute at the same time a mortgage to secure the payment of the consideration.
Conveyance from Bowlin find wife to Pollock. briginal bill Hi Pollock,foi rescission of the contract.On the 7th of October, 1818, Bowlin and wife executed a deed to Pplloek, inciting their claim as in the agreement of the third of October, and conveyed their interest as one moiety of twenty-four hundred and forty-five acres in said entry, survey and patent, with warranty against themselves and their heirs, “and against the claim of said Thomas Spilman and his heirs, and all persons claiming under him, but against no other person or claims whatever.”
In May, 1818, Pollock exhibited his bill in equi- ■ ty against Bowlin and wife, for injunction against the judgment at law, obtained upon one of th§ notes given, and for a rescission of the contract.
In this bill Pollock states his claim and occupation under Pollock’s settlement and pre-emption for " about 25 or 28 years, and that he is yet possessed ; that a suit was instituted against him and others by Patty Harris & Go. as complainants, of whom were Bowlin and wife, claiming as heirs of Thomas Spilman, upon the entry of Patty Harris & Co. and refers to the suit in the General court, as pending and undetermined — “that having understood from the record and proceedings in said suit, that said Bowlin and wife was the only heir at law of the said ■Thomas Spilman, as the record did then present the 'ease, your orator and the said Bowlin and. wife*37fcáme to art agreement for the one half of said Thos. Spilman’s interest, being twelve hundred and twentv-two and an half acres,” and refers to the agreement of the 3rd of October, and the deed of the of October, 1816.
Answer of look’s original bill,The complaint in this bill is, that he discovered since the making of the agreement, that Bowlin and wife “are not the heirs at law of the said Thomas Spilman-, and in fact their names have been stricken out, as part of the complainants in said suit in chancery, and others inserted in their place;” that the title to said Thomas Spilman’s interest is now properly in the heirs of William Spilman, the eldest son of the said Thomas,” &c. so that Bowlin and wife have no title to tiie land. He states in this bill that his possession was of 400 acres of land of the first quality, surveyed and patented to Alexander Pol- • lock, which the complainant inherited as heir to his brother.
In August, 1818, Bowlin and wife filed their answer, in which they state that Thomas Spilman, the father of said Sally, now Sally Bowlin, being possessed of a warrant for two thousand five hundred and forty-five acres, devised it to his sons, James Spilman, Thomas Spilman, John Spilman and Samuel Spilman, as appears by his will recorded, which they exhibit; that John Spilman and Stunuel Spilman were brothers of the whole blood, to said Sally; they, John, Samuel and Salty, being children Of the last wife, and the only children of that marriage, and James and Thomas were the children of said testator by his former marriage; that John and Samuel, the brothers of the whole blood of said Salty, died intestate and without children, leaving said Sally, the only surviving sister and heiress, of the whole blood; that .believing themselves thereby entitled, they made the contract with Pollock; that he had been party to their suit; had, moreover, full knowledge of all the facts; that the will of said Thomas, the testator, was shewn to him, and the facts on which they founded their claim were fully made known, and were the subjects of frequent conversation by him, before he entered into *38the agreement and accepted the deed; they deny that the said Pollock had made the discovery pretended in his bill since the contract, but aver the were fully known and explained to him before the contract, and that he with a full knowledge of all the difficulties in their claim, entered into the agreement and accepted the warranty, and the deed therein mentioned; they aver that they had repeatedly before this suit offered to rescind the contract, but the complainant, Pollock, utterly refused, declaring that the contract was worth to him ten thousand dollars', they deny any knowledge of their names having been stricken out of the bill, and if done, it was wholly unauthorized by them.
„ Thomas Spilmau’s Wlll‘ Froofs. 'The will of Thomas Spilman hears date on the first of October, 1782. The devise alluded to is in these words: “ Item, my desire is, whereas, I have a land warrant for two thousand four hundred and forty-five acres of land, any where in Virginia, that it shall be equally divided between my four sons, viz: James Spilman, Thomas Spilman, John Spilman and Samuel Spilman — my saying any where in Virginia is a mistake of mine, I mean any vacant land.” This well was duly admitted to record in Nov. 1782.
It appears by the depositions in the cause, that Pol-Jock was fully apprised of the manner in which Bowlin and wife claimed; that they did truly represent the facts upon which she based her claim as heiress to her deceased brothers of the full blood, their death and intestacy, without issue, and furnished Pollock with a copy of the will of Thomas Spilman, deceased, and after inspecting it, he purchased upon his own judgment upon the facts, truly and fairly stated, as set forth in the answer of Bowlin and wife. ' It does moreover appear in proof that he declared that by the purchase of Bowlin and wife, he was fully able to cope with those who were suing him upon the claim of Patty Harris & Co.; that lie refused the proposal of Bowlin to rescind the contract, upon some dissatisfaction expressed by Pollock, and said the contract was worth eight or *39ten thousand dollars to him, but nothing to Bowlin and wife.
Amended bill Answer to amended bill.After the answer of Bowlin and wife was filed, and depositions taken fully supporting that answer, Pollock obtained leave in August, 1819, to file an amended bill.
In this amendment he exhibits the will of Thomas Spilman, bearing date in 1782, and recorded in Virginia in the same year, and alleges that he has discovered the fact of the will and devise and death of Thomas Spilman in 1782, and it may be true that said Sally has inherited the part of the land warrant, devised in said will as set forth in the answer; but that he has “discovered that a certain •Charles Morgan assigned the said warrant so devised, in the will óf Spilman, to himself, after tire death of Thomas' Spilman, or some other person has done so for him, and has appropriated said warrant by entry, survey and patent as by a.copy of the warrant, entry, survey and patent hereto annexed will appear; that the warrant so devised by said will is not included in the warrant of Patty Plarris &c. as will appear by their numbers on the face of the entry and warrants hereto annexed; that if said Thomas Spilman had an interest in the entry sold to your orator, it was not devised by his will and under thelaw of descents then in force, his interest descended to his eldest son, at that time his heir at law, to-wit, William Spilman, as your orator has been informed and believes, and that the defendant, Sarah Bowlin, could not be entitled to one single foot of said warrant;” that as Thomas Spilman died before the date of the entry of Patty Harris &c. the entry as to him is void, and could vest no interest devisable or descendable by law, and, therefore, he insists that the defendant, Sarah, could have no interest of any kind in the claim of Patty Harris & Co.
The defendants in answer to his amended hill, deny any knowledge of the facts asserted, other or different from those asserted in their former answer.
Decree of the aircuit court. Act of ’92 vested the title in those who were heirs or devisees at the date of the enactment, and not at the time of the demise. Death of the forTthe entry does not affect the operation'of the grant under forthe^enefit of the heirs and devisees, Claim to relief setup in WU denotmced/The circuit court decreed that the contract he rescinded, and perpetuated the injunction against the judgment at law.
The bill complains that Thomas Spilman, one of Patty Harris & Co. was dead before the date of the entry and grant in his name. This is true. But the statute of 1792, (1 Litt. laws, p. 160, 2 Dig. 1053,) provides for such cases thus;
“ Whereas, in some instances grants have issued in. the names of persons who were deceased prior to the date, and cases of the same nature may happen in future; Be it enacted, that in all such cases, the land conveyed shall descend to the heir, heirs or devisees, in the same manner as it would do, had the grant issued in the lifetime of said decedant.”
When the grant issued in 1795, to Patty Harris, Thomas Spilman and others, it was not a void grant to Spilman, but his heirs or his devisees took the estate in the same manner as if the grant had issued to Spilman in his lifetime. The cases of Hansford vs. Minor’s heirs, 4 Bibb, 385, and Lewis vs McGee, 1 Marsh. 199-201, have settled the doctrine, that in such cases, of grants in the name of deceased persons, the statute does not give the land to the heirs or devisees, as known by the laws of .devises and descents, existing at the date of the grant, but to the heirs or devisees, according to the law of descent and devise existing at the deatli of the deceased.
The fact of the death of Thomas Spilman before the entry, may, it is true, diminish the power of the c^hn Patty Harris & Co. to overreach and cornmand conflicting claims, or produce difficulties in such conflicts,
But that diminished authority cannot be any just cause complaint against the contract between Pollock and Bowlin; because Pollock before he made the contract, was fully apprized of the death of Thomas Spilman, in 1782, before the date of the entry; the fact was fully disclosed to his view, by ^ie hispectio.il of the copy of the will, and by his knowledge of the entry, survey and patent of Patty *41Harris & Co. acquired as a suitor contending against it; he purchased with a full knowledge of those facts; his first bill is an unfair, disingenuous pretence of an after discovery of that which was known to him before and at the time of the contract. He purchased with a full knowledge and statement of the facts, and, therefore, on this ground there is no cause for rescinding the agreement.
Grounds in in the amendment. Land warwaárrnts deviseable and descendible. Devise of land warrants in 1782, passed the iand after-wards appropriated by them.By the amended bill he takes the ground, that it may be true that Sarah Bowlin did inherit from her two brothers, their parts of the land warrant devised to them, but that the land warrant so devised was not included in the entry of Patty Harris & Co.; that Charles Morgan had assigned the warrant to himself and acquired land thereby elsewhere; that Sarah Bowlin took nothing in the entry of Patty Harris & Co.; that Thomas Spilman had no interest in that entry descendible or devisable; that the interest, whatever it may be, of Thomas Spilman, under that entry, survey and patent is vested in the eldest son and heir at law, William Spilman.
A land warrant was a devisable and descendible interest, according to the case of Gist’s heirs vs. Robinett &c., 3 Bibb, 5. Tlie land after acquired by the warrant would pass to the devisees or to the heir at law, m case there was no devise. By virtue of the statute of 1792, before recited, the grant to Thomas Spilman, then dead, vested such interest as was designed for him in his devisees, or in his heir at law, according to the laws of devise and descent in 1782, when his will and testament bears date and when he died.
As the laws stood in 1782, a testator could not devise an after acquired interest in lands, and the eldest son was the heir at law. But a land warrant was devisable, and the bill admits that the testator had a warrant as alluded to in the- will. If the interest conceded to Spilman in the entry and patent to Patty Harris & Co. was founded on the warrant alluded to in the will of Spilman, then the statute of 1792 vests and maintains the interest of the devisee of that warrant.
Before the vitó of the6 '-whole blood inherited the inexclusion° of the brother of the half blood. • Question of s'Uinariln the warrant.If that warrant was one of the ten qpon which the entry purports to be founded, and in consideration of which the grant issued, then it is clear that interest of Spilman would pass by virtue of the statute of 1792, to the devisees, the four sons of Thomas .Spilman. In that case the interest of Bow-' Jin and wife would be what was supposed in the contract, that is to say, the two sons by the second marfúige, John and Samuel, would have taken each one fourth by the devise, and by their subsequent death, Without issue and intestate, Mrs. Sarah Bow-surviving sister of the whole blood, would inherit their shares to the exclusion of thfe sons, William, James and Thomas, the sons of the’first wife of Thomas Spilman, they being brothers of the half blood. According to the law of descents,’ before the first day of January, 1787, the collateral heir of the person last seized, oiiist haye been his next collateral kinsman, of the whole blood. So, upon the death of John and Samuel, children of the second' marriage, the brothers, William, James find Thomas', sons of Thomas Spilman by his first marriage, could not inherit as heir to the brothers, John and Samuel, of the half blood, but their interest descended to Sarah Spilman, now Bowlin, ¿lie sister of thev whole blood: for in such cases the maxim is, “possessiofratrisfacit sororem esse haxc redmn” —the possession of the brother makes the sister the heir: Black. Com. book II, chap. 14 — VI rule of descents, p. 227 and 231.
The title of the sister, Sarah, to the shares of her *:'vo deceased-brothers of the wholf blood,'John and Samuel, in the land warrant devised to the’four sons, to be equally divided, (thereby being tenants in common,) is not denied. But the object of the amended hill is to prove that at the time of the making of the will, the testator had no devisable interest in the warrants, upon which the entry of Patty Harris & Co. was subsequently made, and upon which the grant issued, nor even any interest which could, or has descended, or been vested, in the heir at law "!
Held Uie cera clrtifiecl'copy ofarecord inhisoffice)of amountsand assignments of the war™¿chtíie grant issued, not compe tent CVIclenGe An exhibit ™GdG in the fact demean tfee answer, may be read as part of pleading and as such cannot be excluded, butif not competent, will not betaken lor proof, but for allegation only.*43To maintain these propositions the complainant, by his bill, proposes to trace the ten warrants refer-eel to by their numbers in the entry, survey and grant; to shew therefrom, that all those issued subsequently to the death of Thomas Spililian; that no one issued to him; that no part of any one Appears to have been assigned to him, and that the testator’s warrant of 2445, was assigned by Charles Morgan to himself, and appropriated elsewhere. These facts asserted by the Amended bill; are put in issue by the answer.
■ The only evidence of the facts is the certificate of the Register, made an exhibit in the bill, in which the quantity of each warrant refered to in the entry, survey and grant of Patty Harris & Co. is given, the date of each warrant, to whom issued, and the assignments appearing thereon, and the quantities assigned and the persons appearing as assignees, if the facts stated in the certificate of the Register be taken as true, then the questions of law arising thereon remain to be investigated; But the córnpetency of the certificate of the Register to prove facts at issue arises.. As an exhibit to explain the facts, this certificate is referred to in the bill, as such it has its place; the defendants were to notice the facts asserted by reference to it; they have put the facts in issue: no other proof is offered but that certificate. A copy of a public record or document would be evidence of all that the original itself would prove, if produced. But a certificate er extract of facts from parts of public records or documents belonging to the Register’s office, are not ev-' idence. If such a certificate had been offered in evidence and not objected to, this court ought not to receive the objection, for the first time made here. They ought in such case to presume that the parties had accepted such certificate or extract, in lieu of the more expensive mode of bringing certified copies of the whole documents.
But here the certificate is referred to in the hill, to the reading of it as part of the bill, no objection could be made, any more than to the reading of the body of the bill. But when read, it lias not the *44force of evidence to prove the truth of the hill. If the exhibit refered to, has all the solemnities necessary to authorize it to be read as evidence, as a certified copy- of an entry, survey, patent, or warrant, or deed enrolled, then the reading of the exhibit proves the truth of it. But the reading of a certificate, such as the one in question, is no more evidénce of the truth of the facts, than a copy of an account sworn to by the complainant, and refer-ed to in his bill, would be evidence of the justice of the account when put in issue.
Land warrants were assignable by parol prior :*o 1787. ■Spilman’e interest appears on the face of the entry, survey and patent, but not the amount of it.But the entry is in the name of Spilman, as an assignee; a warrant was assignable by parol before 1787; the surveyor has received the entry so, he has received the survey so, and the Register has issued the grant to Spilman, as being assignee; all the company have recognized Spilman as an assignee of the warrants or some part thereof, and as part owner •of the entry, survey and grant. To receive a memorandum from the office, which will stop at any •point or part, desired by the party asking it, to ■overturn the solemn acts of the Surveyor, Register and parties concerned in interest, would -be going •.too far.
To obviate the internal evidence contained in the entry, survey and grant, that Spilman is assignee and entitled to a part of the land, the counsel for complainant lay stress on the expressions in the entry, “each to hold in proportion to their respective quantites mentioned in. said warrants,” and agree that as no warrant has issued to Spilman and no assignment appears on the warrants to him, that therefore he is entitled to none by the very terms of the .entry. ■ Supposing the certificate of the Register to be evidence, then the quantities expressed in the ten warrants amount to nineteen thousand six hundred ■and forty-one acres and an half, exceeding the quantity located by two thousand two hundred sixty-nine and three quarter acres. Of this quantity of 19641 3-2 acres, but eight of the fifteen persons named in the entry are original holders: Spilman, Barbee, :Sudduth, John Porter, Nay and Morgan, are not .named in.the body of the warrants, and Coons, a *45pfffienitee, is not named in the entry or survey. Neither the habendum in the entry nor in the patent refer to persons named in the body of the warrants, as originally issued, nor to the quantities in the warrants. Not to the persons alone named, because some of them are expressly named as assignees, and Spilman especially; not to the quantities expressed in the face of the warrants, because each warrant must abate so much as is necessary to reduce the quantities in the warrants to the quantity located; otherwise some one or more of the persons named in the entry would get none of the land located. This shews that these expressions in the entry, “each to hold in proportion to their respective quantities mentioned in said warrants,” means that they are not joint tenants, but that their interests are unequal and subject to be settled among themselves.
Held the other grantees todeny the interest of ( en”y^survey, and patent/’ Amount of each paten^b’eo^fobe fixed by evidence out-of for" this purpose assignments 'variants before ’87 might be proved,The entry, survey and grant, all express an interest in Thomas Spilman; the company are estopped to deny it; that interest, like the interest of each and every other, cannot be determined by the grant but must be determined by evidence behind the grant, survey and entry. If no more than the exact quantity of seventeen thousand three hundred and seventy-two acres shall be obtained, all must suffer a proportional abatement; in case of a defect all must sustain a farther proportional diminution, in case of surplus all must share it proportionally; according to their true interests,in the entry, survey and grant.
The respective interests of the grantees are matters of fact to be settled by the company, they are estopped to say Thomas Spilman liad no interest, and that interest may be traced by matters without the entry, survey and grant. The bill admits that the testator, Spilman, had an interest in a warrant for 2445 acres of land, but alleges that warrant is not the one on which this entry, survey and grant was founded: first,because Charles Morgan, or some one for him, assigned that warrant to himself; secondly, because none of the ten warrants have issued or have been assigned to Spilman, as appears by the warrants. At the time of the devise, and at the *46date of the entry no statute required a contract for land to be in writing, the statute of frauds and perjuries was not., then in force in Virginia. Suppose Charles Morgan did assign away the warrant of Thomas Spilman, and did agree, or in consideration of that justice'due to Thomas Spilman or his devisees, did of his own accord design, to compensate for the loss of that warrant by the like quantity in this entry, survey and grant? Suppose the devisees of Spilman are willing to accept compensation from Morgan, by a like quantity in the entry ? What is to prevent it? Morgan is, by the certificate filed, the assignee of three thousand nine hundred and sixty-eight and an half acres of those warrants, from other members of the company, and can, out of that quantity, compensate Spilman’s devisees. The devisees have a right to trace their right in equity, and there is nothing in the face of the entry, survey grant, or in the' certificate from the Register’s office to estop them from so tracing their interest in the.grant to Patty Harris & Co.; but there is much to fortify them in so doing. Whether the entry was made for Spilman upon the identical warrant alluded to in ins will, or by Charles Morgan upon another warrant in exchange for that, is not material.
It is no objection to the claim of the heirs or devisees under the act of 1792, that the land warrants issued after the death of the ancestor, as between the heirs or devisees and a cograntec.But the bill supposes, that if the warrants mentioned in the entry of Patty Harris & Co. did not issue until after the death of Spilman, neither his devisees nor his heirs can have any interest; that by the certificate of the Register as to dates, persons to whom the warrants issued, and the assignments; that it is proved that Thomas Spilman had neither a descendable or devisable interest. The conclusion cannot be admitted. - By the statute of 1792, the interest of Spilman in the grant issued in his name is cast upon the devisees, or upon the heir at law, in the same manner as it would be, had the grant Issued in the lifetime of such ctecedant. Let us suppose then, that Thomas Spilman had been alive in 1795, when the grant issued to Patty Harris, Thos. Spilman & Co. it is clear that if the interest of Thomas Spilman did not pass by devise, it must after his death have passed to the heirs at law, of whom Mrs. Sarah Bowlin would have been one, *47■according to the law of descents in 1795. Or supfióse that the grant, by force of the statute of 1792, ias reference to the period of Thomas Spilman’s death in 1782, so as to vest the estate immediately upon the issuing of the grant in 1795, in the same person or persons who were capable to take in 1782, by devise or descent, according to the laws then existing and applicable to the facts. Then if the devisees cannot trace the connexion between the warrant devised and the subsequent entry, survey and grant, so as to take as devisees, the interest granted by the patent to Thomas Spilman, then dead, must vest in his heir at Jaw. The patent vests an interest either in the devisees or in the heir, which Patty Harris & Co. are estopped to deny: the death of Spilman, the locator, named in the entry, survey and grant, is not extinguished by bis death, it is made effectual and valid by force of the statute.
Interest of Bowlin and wife in the land. Held the pur-: chaser having taken the warranty in the conveyance, must roly on that and not dispute the c’.aim he pur - chased.If the estate granted to Thomas Spilman did pass by the devise of the warrant of 2445 acres, and the connexion between that warrant and the subsequent grant, then Mrs. Bowlin takes the precise interest which she claimed and sold, and her husband can never be responsible, as for breach of his warranty against the heir of Thomas Spilman. But if the heir shall claim and Bowlin and wife shall be unable to trace the connexion between the warrant devised, and the grant tq Patty Harris, Thomas Spilman & Co. then the event will' have happened, and the possibility to which the parties had an eye, and about which they contracted for a warranty; the defendant, Bowlin and wife, agreeing to make the warranty, and the complainant agreeing to accept it and rely upon it. S\ hen the complainant so consented, he knew that Spilman died in 1782, a oopy of his will proved and admitted to record in that year was presented to him and he inspected it; he knew the facts by which Bowlin and wife claimed as heiress tq the two deceased devisees of the unlocated land warrant; he knew by reason of the suit against him, by Patty Harris & Co. the date of the entry, the terms and contents of the entry and of the grant, lie was holding a tract of land within the grant, he was party to a decree by Patty Harris, *48Bowlin and wife &c. by which the validity of the claim of Patty Harris & Co. and the invalidity of his own was decreed; with his eyes open to the possible difficulty which might in future arise between the heir at law and the devisees of Thomas Spilman, deceased, Pollock purchased one jnoiety of the claim of the devisees from Bowlin and wife, the heiress of that moiety, from two of the deceased devisees, taking a covenant of warranty against the claim of the heir at law. As to every thing else except this covenant of warranty against the possible difficulty with the heir at law, it was a catching bargain on the paid of Pollock, tp protect his possession.
Contract made by Pollock with full knowledge. Where the contract is for chasertakes a warranty, h® must rely ™tl^at equityf63*48This warranty was given and accepted upon fair open dealing, without fraud or concealment on the part of Bowlin and wife. Upon the facts stated it was brought to a question of devise or descent under tire will of Thomas Spilman. A warranty against the heir at law is accepted. There is no pretence by any colour of proof for saying that the heir at law has set up any claim in opposition tq the claim of Bowlin and wife. But the complainant has taken upon himself to stir the questiqn and to prove that the title is in the heir at law. At best, allowing his exhibit of the memorandum from the Register its full force, it is matter of doubt between, the title of the devisee and the title of the heir at law, and the scale of evidence inclines in favor of the devisee. He has not called Patty Harris & Co., into court to settle the interest of Spilman; nor upon Charles Morgan to say whether this interest of Thomas Spilman was given in exchange for anoth-. cr warrant alluded to in the will. But having put Bowlin and wife out of court, in the suit by Patty Harris & Co. against him, and thereby hedged him-, self against a new suit, he attempts to rescind the. contract, by pleading the title of the heir at law, and so indirectly, to open the decree, and to evade the stipulations of tile contract with Bowlin.
When parties have fairly stipulated with a view to a particular difficulty, and the vendor has agreed to warrant against it, and the vendee to accept the *49warranty; a court of equity ought not to assist purchaser in taking up the cudgels to perform the bffice of an adversary claimant, and in acting the part of a traitor to his title and to his warrantor.
Conclusion;, Wickliffe, for plaintiffs; Talbot, for defendant.It is safer in the present case to leave the purchaser, Pollock, to his recourse upon the Warranty, in case the heir at law shall ever successfully impeach the claim of Sally Bowlin under the devises. Whether the land entered, surveyed and patented in the name of Thomas Spihnan, deceased-, did or did not pass by the devise of the warrant mentioned in the will, depends upon tracing that warrant. It is a question between the heir at kw and the representa* tive of the devisees-. The pretended discovery can do no more than raise the question between the title ■of the heir and the title of the devisees. The complainant accepted a covenant against the claim of the heir, if evér made good — the heir has never yet asserted a claim in oposition to that of the devisees.
It séems to me that the contract in the bill men* tioned, was free from any suggestion of falsehbod or concealment of the truth; that it was a catching bargain by the purchaser, Pollock, with a covenant of warranty, given and accepted, against a difficulty not bverlooked; that in such case a court of equity ought not to interfere before any breach of the warranty, unless upon the discovery of some hidden fact which clearly demonstrates that the vendor had nothing to sell, and that the purchaser acquired no benefit: and that the proof in this cause does not present á case in which a court of equity ought not to assist thé complainant. The cases of Bumpurs vs. Platner, 1 John. Ch. ca. 213; Abbot vs. Allen, ex’or. of Allen, 2 John. Ch. ca. 519; Miller vs. Long, 3 Marsh 336, are in poní-.
It is, therefore, my opinion that thé decree of the 'circuit court be reversed, and that the cause be remanded, with directions to that court to dissolve the injunctions with damages, and dismiss the bill, with costs — but by the opinion of the majority of the court, the decree is to be affirmed.