Williamson v. Daniel.

APPEAL from the Circuit Court of Georgia. The controversy in this cause arose out of the following clauses in the will of James Daniel :

"I lend my wife twenty-one negroes," naming them, and also certain lands, during her natural life. And subsequently, "I give and bequeath unto my granddaughter, Patsy Hendrick, three negroes, viz., Joe, Parker and Willis-I also give her one-half of the negroes I have lent my wife, to her and her heirs for ever. I give and bequeath unto my grandson, Jesse Daniel Austin, son of Betty Austin, one-half of the negroes I have lent my wife, after the death of my wife, Nancy Daniel. Now my will is, that if either of my grandchildren, Patsy Hendrick, or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate."

Jesse Daniel Austin (now called by special act Jesse Austin Daniel) survived Patsy Hendrick; and after the death of Nancy Daniel, the widow of the testator, took into possession all the negroes bequeathed to her during her life. Patsy Hendrick died about the year 1805, intestate, and without heirs of her body, being at the time of her death, an infant about nine years old, leaving Robert Hendrick, her father, and Louisa Hendrick, her halfsister, by the father's side, now Louisa Gibbes, one of the complain*569] ants, her next of kin. Robert Hendrick died in 1814, having first made his will, bequeathing his estate to the said Louisa, his daughter, and his wife Mary, now Mary Williamson, also a complainant. Some of the slaves, to wit, Sally and her children, were born in the lifetime of Nancy Daniel.

The court below determined, that the limitation over was too remote, and decreed one-half the slaves to the representatives of Patsy Hendrick, the complainants. It is also decreed, that the slaves, Sally and her children, did not belong to the estate of the tenant for life. The defendants appealed to this court.

March 12th, 1827. The cause was argued by Berrien, for the appellants, citing Fearne, 445, 471, 478, 482, 485; Prec. in Ch. 15; 1 P. Wms. 534; Prec. in Ch. 108; 3 P. Wms. 253; Johns. 289; 2 Mass. 56; 1 P. Wms. 663; 3 Atk. 396; 2 T. R. 720; 7 Ibid. 585; 8 Ves. 11; 17 Ibid. 479: and by Wilde, for the respondents.

March 16th. MARSHALL, Ch. J., delivered the opinion of the court.The first bequest to Patsy Hendrick would pass the slaves therein mentioned to her absolutely, were not this absolute estate qualified by the subsequent limitation over, if either of the testator's grand-children Patsy Hendrick, or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. We think these words convert the absolute estate previously given, into an estate-tail; and, if so, since slaves are personal property, the limitation over is too remote. There are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder over is to take effect, whenever either of the immediate legatees should die without a lawful heir of his or her body. The gift in remainder is a gift to the stock, and is limited over on a contingency too remote to be allowed by the policy of the law.

Newman v. Jackson.

*The second point is, we believe, well settled. The issue is, we believe, universally considered as following the mother, unless they be separated from each other by the terms of the instrument which disposes of the mother.

Decree affirmed, with costs.

NEWMAN, Plaintiff in error, v. JACKSON, Defendant in error.

Notice of sale.

Question as to the sufficiency of a notice of sale of real property, under a deed of trust. No particular form of such a notice is prescribed by law; it is sufficient, if the description of the land be reasonably certain, so as to inform the public of the property to be sold.

ERROR to the Circuit for the District of Columbia.

March 2d, 1827. This cause was argued by Key, for the plaintiff in error; and by Swann, for the defendant in error.

March 12th. TRIMBLE, Justice, delivered the opinion of the court.This was an action of ejectment, brought to recover lot No. 99, in Threlkeld's addition to Georgetown, with the improvements thereon, fronting sixty feet on Fayette street, and one hundred and twenty feet on Second street. The plaintiff in error was tenant in possession of the premises, appeared to the action, and, upon entering into the common consent rule, was admitted to defend, and pleaded not guilty, upon which issue was joined.

Upon the trial in the court below, the plaintiff gave in evidence a deed from John W. Bronaugh to Thomas G. Moncure, conveying to him, in trust, for the payment of certain enumerated creditors, "a lot on Fayette street, and Second street, in Georgetown, fronting 60 feet on Fayette street, and 120 feet on Second street, with the buildings, *improvements and [*571 privileges," in trust, to secure the payment of the enumerated debts, within thirty days; and if not then paid, the property conveyed in trust to be sold, "after a week's notice in the Messenger," &c. The plaintiff gave in evidence the notice published in the Messenger, under, and in pursuance of which, the property was sold at public auction, in these words, to wit:

"By virtue of a deed of trust to the subscriber, for the securing certain moneys therein mentioned, will be exposed to public sale, on Thursday, the 4th of March next, for ready money, the following described property, viz., lot No. 99, in Peter, Beatty, Threlkeld and Deakins' addition to Georgetown, fronting 60 feet on Fayette street, and 120 feet on Second street, with a two-story brick dwelling-house, in excellent repair, thereon. The sale to take place on the premises.

THOMAS G. MONCURE, Trustee.

"The above sale postponed until the 4th day of May next, when it will certainly take place. March 24th, 1819."

The plaintiff proved, that the lot conveyed by the deed of trust had been sold on the premises, at public auction, by Moncure, the trustee, on the day mentioned in the notice, and that Jackson became the highest bidder and purchaser; and the plaintiff gave in evidence the deed of conveyance made by the trustee to Jackson, for lot No. 99, &c., in pursuance of the public

Newman v. Jackson.

sale. It was proved, that the plaintiff in error had entered upon the premises, as tenant to John W. Bronaugh, and that he was in possession at the commencement of the suit; and the town plats were also given in evidence. A verdict was taken for the plaintiff, subject to the opinion of the court, as to the law arising upon the case, and the court below, thereupon, gave judgment for the plaintiff in that court.

It is contended for the plaintiff in error, that the judgment of the court below is erroneous, and should be reversed: *1st. Because no valid *572] sale could be made of the premises in question, without the aid of a court of equity. 2d. Because the trustee's "proceedings were irregular, and no title passed to the appeliee by Moncure's deed of the 14th of June 1819."

We do not think there is anything in the first ground assumed by the counsel for the plaintiff in error. Whether the conveyance from Bronaugh to Moncure be regarded as a mortgage, as contended for by the counsel, or as a deed of trust, in the usual and technical sense of the term, there can be no doubt, it vested in Moncure the legal title to the premises; and his conveyance of the premises by deed, to the appellee, if regularly made, must necessarily be regarded in a court of law, as investing the appellee with the legal title. How the matter might be regarded by a court of equity, is not for this court here to say. But it is perfectly clear, that the conveyance of the trustee was a sufficient title at law, to enable his alienee to recover in the action of ejectment, unless the second objection is maintainable.

The second ground of argument proceeds upon an objection to the notice of sale. It turns out, upon an inspection of the town plats, that the premises in question do not lie in "Peter, Beatty, Threlkeld and Deakins' addition to Georgetown," as described in the notice, but in "Threlkeld's" addition to Georgetown. And this mistake in the description of the premises, it is insisted, wholly vitiates the notice, and must render the sale made under it void. We think the objection ought not to be sustained. The law has prescribed no particular form for a notice of this description. It is sufficient, if, upon the whole matter, it appears calculated reasonably to apprise the public of the property intended to be sold. We think the notice sufficient, for that purpose, notwithstanding the inaccuracy of describing the property as being in "Peter, Beatty, Threlkeld and Deakins' addition," instead of "Threlkeld's addition." It could not mislead those who did not know the precise limits of these respective additions, and they were, to those who might wish to purchase, of so little consequence, as scarcely to form a subject of inquiry. That part of the description, all must have known, did not, and could not, point out the particular lot intended to be sold. That *573] could not only be arrived at by the more certain and specific description of its locality; namely, "lot No. 99, fronting 60 feet on Fayette street, and 120 on Second street." To those who knew the precise limits of the several additions, the notice furnished, upon its face, not only sufficient evidence of the mistake, but a sufficient corrective of that mistake. They could not be ignorant, that Fayette street and Second street were not in the addition described, but in the adjoining addition, in the name of Threlkeld. As the lot is described as fronting 60 feet on one of those streets, and 120 on the other, it must have been obvious, at once, that as these streets crossed each other at right angles, and the lots were laid off in a right-angled parallelogram, the lot intended lay in the angle formed by these two streets.

The

Dunlap v. Dunlap.

streets of a town are its public highways, and must be presumed to be well known to, or easily found by, all those who have an interest in knowing them, or inquiring for them. They are, indeed, the most prominent and notorious land-marks and guides by which the lots are to be sought for, found and known.

It cannot be believed, that any one wishing to find, or know, lot No. 99, fronting 60 feet, on Fayette street, and 120 feet on Second street, or to purchase, could be, for one moment, misguided by the inaccurate, and palpably mistaken description, of its being in "Peter, Beatty, Threlkeld and Deakins' addition." Common sense would dictate, to every one who read the notice, that the less important, obscure and indefinite part of the description, which whether true or false, did not mix and give locality to the lot intended to be described, ought to yield to that palpable and notorious description, in reference to the public streets and highways of the town, which gave it positive locality.

It has been said, that the No. 99, did not appear on the recorded plat of the town, upon which the square only is laid down, without divisional lines and numbers designating the lots of each square; but it is admitted, it was numbered on the plat made out by order of the corporation, and lodged with the register, but not recorded. *It is believed, no purchaser

would have ventured to buy, without first inspecting the title-deeds, [*574 and both the plats. But be this as it may, and even if any should have been so careless as not to examine the latter plat, still it would clearly appear from the recorded plat, that the lot described did not lie in the addition supposed by the notice, but in Threlkeld's addition, which was all that was necessary to correct the mistake; and it would also appear, it must necessarily lie in the angle made by Fayette street and Second street. A purchaser, or any one inclined to become a purchaser, of property upon those streets, could not have failed to have ascertained the particular lot intended by the notice.

We all think the notice was, notwithstanding the mistake in part of the description, certain to a common and reasonable exent, and that is sufficient.

Judgment affirmed, with costs.

DUNLAP and another, Appellants, v. DUNLAP and others, Respondents.

Deficiency in quantity of land.

A question of fact, in a suit in equity, respecting the proprietary interest in an entry of lands within the military district of Ohio.

Rule of equity, that where land is sold as for a certain quantity, a court of equity relieves, if the quantity be defective, only applicable to contracts for the sale of land in a settled country, where the titles are complete, the boundaries determined, and the real quantity known, or capable of being ascertained by the vendor.

APPEAL from the Circuit Court of Ohio.

February 9th, 1827. This cause was argued by Scott, for the appellants; and by Doddridge, for the respondents.

February 17th. MARSHALL, Ch. J., delivered the opinion of the court. *This suit was brought originally by John Dunlap, the ap

[*575

Dunlap v. Dunlap.

pellee, in the circuit court of the United States, sitting in the district of Ohio, to obtain a conveyance of one moiety of a tract of land in the state of Ohio, which was purchased, as is alleged in the bill, on the joint account of the plaintiff, and of his uncle Alexander, one of the defendants in the circuit court. Alexander, who made the contract, obtained the conveyance to himself, and afterwards conveyed the land to his son James. Both Alexander and James were made defendants.

Some time about the year 1792 or 1793, Alexander Dunlap purchased from John Fowler, an entry of 1000 acres of land on the Scioto river, in the Virginia military district, at the price of 1007., Virginia currency. An agreement was entered into, at the time, between the plaintiff and the defendant, Alexander, that this purchase should be made in partnership, the plaintiff says, with himself, the defendant says, with John Dunlap, senior, his father. The testimony, however, proves incontestibly that, though the moiety of the purchase-money was paid by the father, it was paid for the plaintiff, whom he always considered as the rightful proprietor of the land. The purchase will, therefore, be treated as being made on the joint account of the plaintiff and Alexander Dunlap. James Dunlap claims as a volunteer under Alexander, and his title is dependent on that of his father.

The original entry was made the 7th of August 1787. It was withdrawn and re-entered on the 22d of April 1796, and this entry was again withdrawn and re-entered on the 25th of July 1796. The warrant was re-entered on nearly the same land. The changes were such as might probably be caused by a more perfect knowledge of the country; and the last entry, as surveyed on the 20th of October 1796, contains about 300 acres of surplus land. The plat of the surveyor, however, on which the patent issued, specifies only 1000 acres. The right to this surplus constitutes the chief subject of controversy between the parties. The plaintiffs contend, that the whole entry was purchased, and that in such contracts, the whole entry passes to the purchaser. The defendants insist, that the original contract was *for only 1000 acres, and that the surplus land belonged to Fow*576] ler. That he afterwards purchased this surplus, not on joint account, but for himself. In 1802, he obtained a grant for the whole tract in his own name, and now claims the whole surplus as his separate property.

The entry is for 1000 acres of land. The survey made on the entry purports to be for 1000 acres of land. The plat and certificate of survey were transferred by John Fowler to Alexander Dunlap, by an indorsement in the following words: "I do hereby assign all my right, title and interest to the within land to Alexander Dunlap, and request a grant may issue accordingly." This is the only written evidence of the contract, and purports to be a transfer of the whole entry and survey.

The defendant, Alexander, alleges, in his answer, that the original contract was "only for 1000 acres of land," that after the survey, he discovered the surplus and mentioned it to Fowler, who said that he had contracted to sell but 1000 acres, and should require additional compensation for the excess. The respondent agreed to give him $300 for the surplus, and Fowler's receipt for that sum, dated the 17th of October 1800, is annexed to the answer. Though the defendant introduces into his answer the allegation that he purchased only 1000 acres of land, yet it is remarkable, that in the first part of the same answer, he states himself to have pur