Opinion
02-02-1852
DICKINSON v. HOOMES'S adm'r & als.
R. T. Daniel, for the appellant. Morson, for the appellees. Barton, on the same side, submitted a printed argument. Bouldin, for the appellant, in reply.
(Absent Cabell, P.)
There is a devise to J, with a limitation over upon his dying without issue at his death, to his brother R if he should survive him, or his representatives, and R dies in the lifetime of J. J sells and conveys the land to A; and R. though he does not convey the land, is a party to the deed, and J and R. covenant as follows: That the said J for himself and his heirs, and the said R, as contingent devisee under the will of Col. J, by whom said land was devised to J, do hereby covenant and agree to and with the said A, that they will warrant and defend the fee simple estate & c. to said land, to him and his heirs forever, against the claim of themselves and their heirs, and the claim of any person claiming under them by virtue of the will aforesaid, and do relinquish and fully confirm to said A, all the right they or their heirs now have or may hereafter have to said land or any part thereof, to him and his heirs, free from the claim of the said J and R and their heirs, and of all other persons in the whole world. HELD:
1st. That this covenant of R extends to the claim of his children to the land, though they claim not as his heirs, but as devisees under the will of Col. J.
2d. That the covenant of R is a covenant running with the land, and a purchaser claiming under A, a portion thereof, by a regular chain of conveyances, is entitled to the benefit of said convenant for his indemnity against said claims.
3d. That the children of R having inherited from him lands in Kentucky, and as by the laws of that state, lands descended may be subjected to the payment of the debts of the ancestor, and the heir is bound by such a covenant of warranty by the ancestor, a Court of equity in the state of Virginia may compel the children of R residing within the jurisdiction, to account for any lands in Kentucky descended to them as his heirs, as a trust subject for the payment of his debts: And under the circumstances of this case, the power should be exerted.
4th. Under the circumstances of the case, the heirs held bound to account for only so much of the Kentucky lands as they have actually gotten or may get possession of, with the rents and profits derived therefrom, deducting the cost and expense of recovering the lands.
John Hoomes the elder died in 1805, leaving a will dated in 1804, whereby he gave to each of his sons John, William, Richard and Armistead, to his daughter Sophia, and grandson John Waller Hoomes, land and slaves in fee simple; but directed that if any of them should die without issue living at his death, his estate should be divided equally between the survivors, or their representatives, according to the principles of the law of descents. All of them survived the testator, and took possession of the estates devised to them. In 1819 John Hoomes the younger sold and conveyed the land devised to him, to Samuel A. Apperson; and Richard Hoomes and the other children of John Hoomes the elder united in the covenants contained in the deed.
These covenants are as follows: " And the said John Hoomes for himself and his heirs, and the said William Hoomes, Richard Hoomes, Armistead Hoomes and Wilson Allen and Sophia his wife, for themselves and their heirs, as contingent devisees or legatees under the will of Col. John Hoomes, late of the Bowling Green, deceased, by whom said land was devised to John Hoomes, do hereby covenant and agree to and with the said Samuel A. Apperson, that they will warrant and defend the fee simple estate and complete right and title to said two tracts of land, to him and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming from, by or under them, in virtue of the will aforesaid, and do relinquish and fully confirm to said S. A. Apperson, all the right they or their heirs now have, or might or may hereafter have, to said land, or any part thereof, to him and his heirs and assigns forever, free from them the said John Hoomes, William Hoomes, Richard Hoomes, Armistead Hoomes, Wilson Allen and Sophia his wife, late Sophia Hoomes, and their heirs, and of all other persons in the whole world."
This land, or the greater part of it, passed by a regular chain of conveyances from Apperson to William W. Dickinson. John Hoomes the younger died in 1825, without issue. William and Richard died in the lifetime of John, the former without issue, the latter leaving several children. In 1827 the children of Richard filed their bill against Dickinson, claiming to be entitled as purchasers under the will of their grandfather John Hoomes the elder, to one undivided fourth of the land devised to John Hoomes the younger; and praying for partition thereof and an account of rents and profits. Their claim was sustained by the Circuit court, and also by this Court on appeal; and the decision of this Court is reported in 1 Gratt. 302.
As to the construction and effect of the covenant of warranty in the deed of conveyance embracing the land in question, executed by the said Richard and others, if coupled with the descent of assets from him to the appellees, this Court deemed it irrelevant to go into the consideration thereof, inasmuch as no such defence was made in the Court below; nor could any cause of action founded upon said warranty be prejudiced by the decision aforesaid.
After the case went back to the Circuit court, to wit, in 1844, Dickinson filed a cross bill charging that a tract of land called Ruffin's, of greater value than the land in controversy, had come by descent from Richard Hoomes to his children, and had been divided among them; and that the said children, except one of them, who had intermarried with Alfred H. Garnett, of whose circumstances said Dickinson knew nothing, were wholly insolvent; and praying an injunction of the interlocutory decree which had been affirmed as aforesaid, and for general relief.
The injunction was granted; but was afterwards dissolved; it appearing that the tract of land called Ruffin's had been sold under a decree of a Court of chancery, and the entire proceeds of sale applied to the discharge of the debts of Richard Hoomes.
In 1845 Dickinson filed a supplemental bill, charging that since the filing of his original bill he had ascertained that lands in Kentucky, which had been devised by John Hoomes the elder to the said Richard, had come by descent from Richard to his said children, and greatly exceeded in value the subject of controversy in the suit, and praying that the injunction should be reinstated, and for general relief. The injunction was accordingly reinstated. The children of Richard Hoomes filed their answer, relying on various grounds of defence. Dickinson afterwards answered the original bill of the said children, relying on the same grounds which he had taken in his supplemental cross bill.
In May 1849 the two causes were heard together; and the Circuit court being of opinion that it had not been shewn in the cases that assets had descended from Richard Hoomes to his children, therefore dismissed the bills of Dickinson with costs.
From this decree Dickinson applied to this Court for an appeal, which was allowed.
The facts in relation to the liability of the heirs of Richard Hoomes upon his covenant of warranty, for lands descended to them, will be found stated in the opinion of Judge Moncure.
R. T. Daniel, for the appellant.
The first enquiry which arises in this case is, as to the extent of the covenant of Richard Hoomes in the deed to Apperson; and what is its effect as against his heirs. The exposition of the clause in the will of John Hoomes the elder, under which these appellees claim an interest in the land conveyed in the deed to Apperson, was made by this Court in the case of Dickinson v. Hoomes, 1 Gratt. 302. In that case the Court held that the children of Richard took as purchasers under the will of John Hoomes the elder. And the question is, Did Richard Hoomes mean to covenant against the claim of his children merely as his heirs, or also as devisees under the will of John Hoomes. We say it was plainly his object and purpose to covenant for a good title out and out.
In construing the covenant it is to be taken most strongly against the covenantor. Iggulden v. May, 7 East's R. 241. And the intention of the parties was, obviously, to unite in confirming to John Hoomes the younger a good title. This covenant was one running with the land; and was, in the language of the books, an inherent covenant. The distinction between a pure technical warranty and a covenant to warrant is stated in 2 Thom. Coke 361, 362, and Tabb v. Binford, 4 Leigh 132. A covenant to warrant may be made by a stranger even, if the covenantee has an interest in the land. For the doctrine in relation to covenants running with the land, the Court is referred to Spencer's Case, Smith's Leading Cas., 43 Law Libr. 75, 82.
The fact if it was so, that the land has been sold to several alienees, does not impair the effect of the covenant. There is, however, no proof that all the land was not conveyed to Dickinson. It is true that it is stated in 3 Preston on Abstracts of Title 58, that a covenant cannot be divided and split up. But he cites no authority for the proposition; and on the next page of his book he seems to contradict it. It is moreover opposed to the decision in Twynam v. Pickard, 2 Barn. & Ald. 105, and to the doctrine as stated in Platt on Covenants 495, 496; and 2 Thom. Coke 362, seems also to assert a doctrine in conflict with it.
It will be said that a Court of equity in Virginia cannot make a decree subjecting these appellees for assets derived from lands in Kentucky. It is true that a Court of equity in Virginia cannot make a decree to subject lands in Kentucky by sale or sequestration. But the Court has power over the parties to this suit, and may deny them relief, except on condition that they will account for these lands. Or a Court of equity may by a decree in personam compel these parties to do whatever it is equitable they shall do either with respect to the lands or their proceeds. Massie v. Watts, 5 Cranch 148. It is said that there is no proof of what is the law of Kentucky on this subject. If the proof is not authenticated in strict accordance with the statute, it is too late to take the objection in this Court; and it should have been made in the Court below, when it might have been readily obviated.
Morson, for the appellees.
The appellees claim as purchasers under John Hoomes the elder, and not from, by, through or under Richard Hoomes. And yet it is claimed that this warranty bound them as the heirs of Richard Hoomes so far as they had assets; and the bill alleged that they had assets descended to them from Richard in Virginia. This turned out not to be the fact, and then an amended bill was filed alleging that the heirs of Richard Hoomes had received assets by descent in Kentucky. To this bill various defences were set up. The Court below regarded the defence that no such assets had descended to these appellees from their father, in Kentucky, as supported by the proofs; and upon that ground mainly, if not entirely, rested its decree. In this opinion the Court was fully warranted by the proofs, which shew that upon an enquiry made before a commissioner as early as 1826, the assets of Richard Hoomes's estate were exhausted, leaving many debts unpaid; and which shew further that they never were entitled to the lands in Kentucky, as the lands of Richard Hoomes, but of John Hoomes the elder; and that they never in fact obtained possession of them either as the lands of John or Richard Hoomes; but after the division among the heirs of John Hoomes, and without any possession of them having been taken under that division, they were a second time forfeited for non-payment of taxes; and if they got them at all they obtained them by purchase under the delinquent land laws of the State of Kentucky.
Is it to be contended that these appellees were bound to redeem these forfeited lands in Kentucky for the benefit of the creditors of Richard Hoomes? If they are under any such obligation the position of heirs would be one of grievous hardship. But such a proposition is against all law and justice.-- Bouldin, counsel for the appellants. I shall contend that the lands were not forfeited at the time of the death of Richard Hoomes; and that the heirs by forfeiting them subjected themselves personally to creditors for their value, as for so much real assets descended.-- Morson. This proposition of law cannot be sustained. The heirs were not bound to take or accept the lands as heirs; but might permit the lands to be forfeited; and then had as good a right to purchase them from the state as any other person.
Richard Hoomes was never seised of these lands; and by the common law " seisina facit stipitem. " The common law did not, therefore, give the appellees these lands as heirs. Ram on Assets 155, 8 Law Lib. But if the appellees did have lands by descent in Kentucky, they are not liable therefor to the appellant in this suit. The covenant of Richard Hoomes in the deed to Apperson has not been broken, and cannot therefore be enforced against his heirs. Richard Hoomes does not convey the land: That was devised to John Hoomes the younger with a contingent interest over to Richard Hoomes and the other brothers and sisters. And the object of the deed was not to convey a perfect title to the land, but to convey so far as Richard Hoomes was concerned, his contingent rights and interests; or rather to covenant against these contingent rights and interests. That the covenant has not been broken is res adjudicata, as appears from the case between these same parties, 1 Gratt. 302. That case shews that the appellees claim under John Hoomes the elder, not under their father Richard Hoomes: They claim over and above him.
Again. The covenant is not a covenant running with the land. It is clearly not such a covenant as by assignment would confer on the assignee a right to sue in his own name. See Spencer's Case, and the American notes, 43 Law Libr. 75 to 108; Randolph v. Kinney, 3 Rand. 394; Shephard's Touch. 316, 330, 30 Law Libr. Assignees are not bound except by inherent covenants running with the land. And if the grantor does not deliver possession, and conveys no title, any covenant he makes does not run with the land. See 2 Lomax Dig. p. 82, § 25, and p. 242; 2 Sugden on Vend., p. 90 top 79 margin; Urquhart v. Clarke, 2 Rand. 549. This was a case of the sale of a wife's land by the husband and wife. The children claiming were the children of the husband Dunkinson. On the face of the deed Dunkinson and wife claimed to convey and warrant a fee simple estate. Mrs. Dunkinson had not conveyed properly; and it was held that as the land descended from the mother, the claimants were not barred by the deed and warranty of the father. And it was further held, that though real assets descended to the children from the father, they were not bound. The assignee cannot recover in his own name where there is no estate conveyed by the covenantor. By the warranty which we are considering, the covenantor only covenants against himself and his heirs, and those claiming by, through or under him. And the appellees do not claim by, through or under him. The warranty therefore is not broken. 2 Lomax Dig. 263.
Even if it was established that lands had descended in Kentucky to the appellees, still no recovery could be had against them in Virginia in a Virginia forum. Story's Conf. of Laws, § 551, 555. Each state and country has exclusive jurisdiction over the real and immovable estate within its territories. Each state has its own rules with regard to the disposition of such estate. Story's Conf. of Laws, § 523. The lex loci rei sitæ governs creditors, the lex domicilii governs the succession. Real assets abroad cannot be reached in Virginia. In Ram on Assets, p. 236, 8 Law Libr., will be found an English statute making lands in the colonies liable to specialty debts; and another statute extending the like provisions to the English possessions in India. Why were such statutes necessary there, if the heir in England was liable for real assets descended to him in the colonies? Are not our states separate and independent of each other? more so than the colonies of the mother country?
At common law the seisin of the ancestor was necessary to enable an heir to maintain a writ of right. 1 Lomax Dig. 617; 2 Tuck. Com. 181. And unless therefore there is such a statute in Kentucky as our Virginia statute, 1 Rev. Code, ch. 128, § 90, the heirs could not have recovered these lands in Kentucky. 2 Lomax Dig. 246-7.
The appellees are not bound for profits, if bound for the value of the land. Blow v. Maynard, 2 Leigh 29; Hobson v. Yancey, 2 Gratt. 73.
Barton, on the same side, submitted a printed argument.
For the appellees, we humbly contend that the decree is right in its effect, and ought to be affirmed:
1. Because we say that the covenant of Richard Hoomes made to Apperson in the deed to him by John Hoomes, jr., has never been broken: at least that it was not broken by our recovering the land in controversy as purchasers from Col. John Hoomes.
We contend that the covenant of Richard Hoomes is a special covenant of a most limited nature; and that so far from the insertion of the words " as contingent devisees or legatees under the will of Colonel John Hoomes, late of the Bowling Green, deceased, by whom said land was devised to John Hoomes," enlarging the covenant, that taken in their proper meaning, they restrict and limit still further what was without them a mere special warranty, or covenant of warranty. If we leave out these words the covenant reads thus:
" And the said John Hoomes for himself and his heirs, and said William Hoomes, Richard Hoomes, Armistead Hoomes, and Wilson Allen and Sophia his wife, for themselves and their heirs, do hereby covenant and agree, to and with the said Samuel A. Apperson, that they will warrant and defend the fee simple estate and full and complete right and title to said two tracts of land, to him and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming by, from or under them."
Now this is a mere special covenant of warranty, guarding against the covenantors, their heirs, and those claiming by, from or under, the covenantors; and this covenant would clearly not have been broken by our recovery of the land. For we succeeded not as heirs of Richard, nor as claiming by, from or under, Richard Hoomes, but as purchasers from Col. John Hoomes. It is true the appellees were the children of Richard Hoomes; but it is not true that quoad this land they were the heirs of Richard Hoomes. And the words " by," " from," and " under," do not refer to kin or blood relationship, but to the derivation of title and interest in or to the land.
If we insert the words before given, we then see that the covenant becomes more special and restricted. John Hoomes, the grantor, covenants for himself and his heirs generally. The others covenant for themselves and their heirs, as contingent devisees or legatees & c. Why insert these words unless some meaning was designed to be conveyed by them? It is obvious that they did not intend to covenant in any other character than as contingent devisees or legatees; and this becomes very plain hereafter. They warrant and defend against themselves and their heirs, and all claiming by, from, or under them, in virtue of the will aforesaid. It is not or by virtue of the will & c.
This does not enlarge the class of claimants guarded against, to all who may claim by virtue of the will, whether by, from or under the covenantors or not. But it requires that the claimant, to be included in the covenant, shall not only claim by, from or under the covenantors, but also in virtue of the will aforesaid. So that a claimant might claim by, from or under the covenantor, and the covenant would not be broken; or he might claim in virtue of the will, and the covenant would not be broken. His claim only would be covenanted against who claimed both by, from or under the covenantor, and in virtue of the will aforesaid.
The appellees have not claimed this land either as heirs, or by, from or under the covenantor, much less in either of those ways, in virtue of the will aforesaid. Can this covenant then be said to be broken by the appellees taking the land as purchasers from Col. John Hoomes? a contingency which is not included in the obligation.
While surrounding facts are properly admissible to explain or remove ambiguities or difficulties caused by matters extraneous to the instrument, there is no ground for the introduction of loose speculations as to the probable meaning or intention of parties in such an instrument as this. In its interpretation we must look to the language in which the meaning of the parties is expressed,--the terms of the obligation.
If extraneous matters were admissible, we might very reasonably contend, that these parties having received no portion of the consideration, all of which appears upon the face of the deed to have been paid or secured to John Hoomes, that the terms of their covenant should not be enlarged by construction to create an obligation that was not intended.
The covenantors might have chosen to yield all rights which they then had, or might thereafter acquire, to enable their brother to obtain a higher price for the land; and they might be willing to covenant against themselves and their heirs, and claimants by, from or under them & c., and yet not be willing to surrender rights which their children might acquire, or being unable to surrender them, to covenant against their children claiming rights acquired from other sources.
This distinction is the very one made in this case, and which the language of the covenant necessarily leads to.
Nor can it be said that it was the avowed object of this conveyance to give a fee simple estate, and full and complete right and title to the land, as against all persons, when John Waller Hoomes, a grandson of Col. John Hoomes, and who occupied the same position to this land that Richard Hoomes did, does not join in the covenant, nor is his name mentioned as one to join; and when all of those whose names are mentioned did not execute or sign the instrument. And the purchaser's taking a deed with the relinquishment and covenant from only a portion of those having this contingent interest, shews that he was running a risk with his eyes open, and that he did not understand the covenant to be as comprehensive as is now claimed by the appellant; else he would have insisted upon its protection from all, by requiring all to sign.
The relinquishment and confirmation, though no part of the covenant, and only operating as to the rights of the parties thereto, and their heirs, as heirs,-- a proposition which will not be controverted, and is indeed settled by the Court in the case in 1 Gratt. 302--throws some light upon the meaning of the covenant. When they meant to use general terms, language of a comprehensive signification, they knew what terms, what language to use. And the very difference in the terms used in the covenant and the relinquishment, leads us to the conclusion that their own rights the parties were willing to yield in the amplest and most generous manner; but when it came to the imposition of obligations upon others, that the most guarded and limited engagement only would be entered into; only that indeed which would carry out the object of the relinquishment. For it is true, that had Richard survived John his contingent interest would have become a vested interest in him, and if the relinquishment would not have transferred it to the purchaser, yet his covenant would have protected against his heirs; for they would have claimed by, from and under him, in virtue of the will aforesaid: And this, we insist, was the true and only object of the parties.
If it had been intended to give to this covenant a large and comprehensive character, how easy to have expressed it, by inserting at the end of the covenant, " and all other persons whatsoever." Or to have guarded against the contingency of John's surviving Richard Hoomes, by merely changing the words, " in virtue of the will aforesaid," to " or by virtue of the will aforesaid," or indeed, by merely inserting the word " or" before the words " in virtue," & c. Had any of these changes been made, there would have been some ground for the allegation of a broken covenant. But as they were not made, and the covenant is in the words we have mentioned, we humbly submit that it is clear that the covenant of Richard Hoomes has not been broken.
2. We contend that the appellant, as assignee, has no right of action upon this obligation, for the reasons assigned in the answer of the appellees, and the opinion of the Court below. 2 Lomax Dig., 242-3, 277; 1 Smith's Lead. Ca., notes, 107, 43 Law Libr.
There is no proof of this land having passed by a regular chain of conveyances with general warranty to the appellant.
3. In order to hold us responsible on account of assets descended, it is necessary that we should have received real estate by descent, not by purchase or gift; and that by descent from the same ancestor that made the warranty. 2 Lomax Dig., 246, § 8. And we contend that it is also necessary that the land should lie within the territorial jurisdiction of the Courts whose tribunals are appealed to.
Real estate is universally conceded to be exclusively under the control of the lex loci sitæ ; and no other country can take cognizance of controversies concerning it, or bind it in any way. Story's Conf. of Laws, § 363-4 and 5, § 445, 543, § 551-5-6.
From the principles stated by Judge Story, we must infer necessarily, that if this claim of the appellant was on a bond binding the heirs of Richard Hoomes, that our Courts could not enter judgment against them so as to bind lands in Kentucky; and if it should appear in an action at law, that there were no real assets in Virginia, that judgment would necessarily be entered for the defendants. That such is the correct view, the Court is respectfully referred to 3 Vin. Abr. 142; Earl of Kildare v. Sir Morrice Eustace, 1 Vern. R. 419; where Sir John Holt, arguendo, says: " that it was resolved in Evans and Ascough's Case, Latch, fol. 234, and Dowdale's Case, 6 Coke 46, that land in Ireland should be assets to satisfy a bond debt here, but otherwise of lands in Scotland." And just above he stated the reason for the distinction, viz: that Ireland was a conquered country, and hath Courts of its own by the King's grant, but not exclusive of the King's Courts here.
Now Kentucky is certainly as much of a foreign country to Virginia, and as much entitled to exclusive jurisdiction over lands within her limits, as Scotland was to England in 1686, when this was cited as law by Sir John Holt, who was seeking to establish the jurisdiction of the English Court.
And in Dowdale's Case, 6 Coke 46, it was gravely questioned and decided by the Court, whether lands lying in one county in England could be held to be assets by descent, on a suit brought against the heir in another county, where he resided. And while it was of course decided that lands thus situated were to be considered assets, yet, that such a point should have been mooted intimates very clearly what the decision would have been on the question of lands lying in a foreign country.
The doctrine as applied to bonds binding the heirs, of course applies equally to covenants binding the heirs. And upon these authorities, and the exclusiveness of the territorial jurisdiction over lands, we contend, that inasmuch as the Courts of Virginia, in an action brought against an heir on a covenant or bond binding the heirs, could create no lien, impose no liability, nor give any redress for a violated obligation, against lands lying in Kentucky, that a covenant binding heirs, does so only in respect to lands within the territorial jurisdiction of the country whose tribunals are appealed to.
The English Court of chancery has certainly stretched its jurisdiction to the uttermost limits, and never favours an attempt to circumscribe it, yet I have seen no case where, in respect to controversies concerning lands in foreign countries, the English Chancellor has ever asserted this extraterritorial jurisdiction, save when fraud was charged. And it has been happily said, " that the jurisdiction over fraud, like that over piracy, knew no territorial bounds or restrictions."
The contract between the parties thus fixing and settling their legal rights, the appellant can occupy no better position here than if he were attempting to impose a liability by an original suit of his own. And if he could not hold us responsible in such a suit, we contend that he has no right to use this defence in a suit of ours, even though it be in equity. We are seeking legal rights in an equity suit, and the rights of both parties to this controversy are ascertained by law. And while the maxim that " he who seeks equity, must do equity," is a very good one, when applicable, there is another more germain to the matter, that " equity follows the law."
If, however, the position of the counsel for the appellant be correct, and by acting in personam, a Court of chancery in Virginia can indirectly operate on lands in Kentucky, in a case where no fraud can be alleged, yet, upon the previous references to Story's Conflict of Laws, and perfectly well established principles, it will not and cannot be controverted, that the Courts here can give no further or other remedy than would be given in Kentucky, can impose no other obligations than are imposed in Kentucky; and that the liabilities of the heirs are to be established here, exactly as they would be in Kentucky. That is, that our Courts are to ascertain what is the law of Kentucky, and apply it to the case. Now what is the law of Kentucky in regard to the liability of heirs on account of obligations under seal binding heirs?
The Courts of Virginia will not take judicial notice of the laws of a foreign state, but they must be proved as facts. Story's Conf. of Laws, § 637. If they be written laws, copies proved and authenticated must be produced. § 641.
The laws of Kentucky on this point are written or statute law. The appellant has sought to introduce no evidence of the law of Kentucky upon this point, except that contained in Mr. Herndon's deposition, which is not admissible evidence to prove what the law is. Story's Conf. of Laws, § 641. The appellant has therefore entirely failed to prove an indispensable point of his case, were we to concede every point of law and fact to be as he claims. That this deficiency exists in his case is his own fault, and proceeds from his own laches. He had had full time and opportunity to obtain any evidence or legal instrument that he might have desired.
4. The second auditor of the State of Kentucky, in whose office are kept the land books of non-resident proprietors, proves that the lands in the name of Col. John Hoomes, in the State of Kentucky, as appears by the books in his office, amounted to 19,725 2/3 acres, divided into various tracts, and lying in different parts of the state. Of this number that 1008 1/2 acres were lost by prior claims, leaving 18,717 1/6. Two tracts, one of 1001 3/4, the other of 300 acres, were discontinued as the property of citizens of Kentucky. When they were transferred does not appear. It seems however to have been prior to 1826. And they may be the lands referred to as sold by Samuel Chiles, of which we knew nothing, as we were infants at the time, even if it were after Richard Hoomes's death; thus leaving 17,415 acres, of which it is proved that various tracts, amounting to 14,535 acres, were forfeited for non-payment of taxes, prior to 1828, mostly prior to 1826; leaving a tract of 2880 acres which was discontinued, as it was found upon survey to contain 400 acres surplus; 2573 acres of this were afterwards re-entered for taxation; and the taxes becoming in arrears, were afterwards sold by Draffin, agent of the state, and at this sale purchased by Richard H. Hoomes.
It appears very distinctly from the report of the decision and Draffin's deed, and this deposition of the auditor, that the same tract that was divided was afterwards sold for the taxes and bought by R. H. Hoomes.
The discrepancy in the quantity exists only in appearance; for when the portion allotted to Williamson Tally, for his services in having the decision made, is subtracted, the balance amounts so nearly to the number of acres conveyed by Draffin to R. H. Hoomes, as to shew that they must be the same tract, and that the slight difference in number of acres is to be traced to different surveys & c. The appellant has fallen into the mistake as to the identity, from not understanding the facts. It appears from the record that in May 1833, the only tract of land in Kentucky that had belonged to Col. John Hoomes, then remaining, was laid off by commissioners, and after deducting the large portion that went to Tally for his services, the remainder was divided among the children of Richard Hoomes, the assignee of Armistead Hoomes and Wilson Allen. No change was made in the names on the non-resident books in the second auditor's office; and when this tract was afterwards forfeited for non-payment of taxes, Tally, being a resident of Kentucky, had taken care that his portion should not be included in the forfeiture. The number of acres was thus reduced, and was sold by John Draffin as being in the name of John Hoomes, and bought by Richard H. Hoomes, who thus took his title directly from the State of Kentucky; and afterwards, ex gratia, as a gratuity on his part, allowed the others who had been mentioned in the division made some twelve years before, to purchase from him, by the payment of their proportionate shares of the purchase money paid by him, the tracts that had been originally assigned to them.
The land stood on the land books of Kentucky, so far as we know or have any reason to believe, in the name of John Hoomes. Richard did not there appear ever to have had any title even, much less possession, and unless the common law doctrine, that " non jus sed seisina stipitem facit, " was changed in Kentucky by a statute, they would not have taken any land as heirs of Richard Hoomes, but as heirs of their grandfather John Hoomes. Brown's Legal Maxims 227. And if any such change has been made in the law of Kentucky, it was the duty of the appellant to shew the change, which he has not attempted to shew. So that as appears by this record the appellees were right in saying that they took from their grandfather, and not from their father. Indeed, however this point might be decided, they took a large portion of that assigned to them directly from their grandfather's will, precisely as they took the land in controversy in this case, in this state; for John Hoomes, and it is believed William Hoomes also, survived Richard and died childless and unmarried.
It being shewn, then, that this is the same tract divided in 1833, sold to Richard H. Hoomes in 1835, and from whom the other appellees derived their title, and that this is the only tract of land in Kentucky that has ever or could ever come to our possession, we submit, that as our only beneficial title was obtained from the State of Kentucky, that there is no foundation to charge us with the value of these lands, even were the original title, which was lost, derived from Richard Hoomes.
For the appellees we contend, therefore, that the decree of the Court below should be affirmed:
1. Because the covenant of Richard Hoomes has not been broken.
2. Because, if broken, the right of action did not pass to the assignee Dickinson.
3. Because lands descended in Kentucky are not assets in Virginia, and could not in any case be so claimed, whether in a Court of law or equity, without shewing that they would be assets in Kentucky; which has not been done.
4. Because we have inherited no lands, in Kentucky or elsewhere, from Richard Hoomes, but derived a title from John Hoomes, and have derived our possession and only beneficial title directly from the State of Kentucky.
Bouldin, for the appellant, in reply.
I shall consider first the extent and effect of the covenant of Richard Hoomes. What was its object and what its effect? Before entering upon these enquiries, however, it may be well to state some general rules of construction, by which the meaning of the covenant may be ascertained.
1. " Covenants are to be construed according to the obvious intention of the parties as collected from the whole context of the instrument, ex antecedentibus et consequentibus, and according to the reasonable sense of the words."
2. " If there be any ambiguity, then such construction shall be made as is most strong against the covenantor; for he might have expressed himself more clearly." 1 Wheaton's Selwyn 376; 2 Lomax Dig. 251; Platt on Covenants, 3 Law Libr. 61, 63.
With these principles in view, let us return to the question, What is the object and effect of Richard Hoomes's covenant? To aid in ascertaining its object we may refer to the situation of the parties, to their relation to the property, and to the business they were transacting, when the covenant was made. John Hoomes was in possession of and held in the property a base or qualified fee. Richard Hoomes held a contingent interest therein under the will of Col. John Hoomes, dependent on the death of John Hoomes without children living at his death. The children of Richard Hoomes also held a contingent interest in the same property under the will of Col. John Hoomes, depending on the death of John Hoomes without issue, and of their father Richard, in the lifetime of John. Such was the state of things when John Hoomes sold and conveyed the property to Apperson.
Now what, according to the dictates of common sense, and from our knowledge of the motives and conduct of men, would be a leading object with parties thus situated? Obviously it would be the first wish of Apperson the purchaser to secure a good title to the property freed from the contingent interest of Richard Hoomes and his children; and it would as clearly be to the interest of John Hoomes the vendor, if possible, to secure him such a title. This I insist would naturally be the object of parties thus situated: and that such was in fact their intention, is plainly to be gathered from the terms of the covenant, construed " according to the reasonable sense of the words" used. (Mr. B. here read the covenant and commented on its terms.) He insisted that there was nothing in the narrow and hypercritical construction placed on the words of the covenant, by the learned counsel for the appellees, to prevent the Court from carrying into effect the obvious intent of the parties. That a covenant could not well be drawn more clearly indicating a purpose to guard against the very contingency that has happened, than the one under consideration, viz., to protect the purchaser not only against the claim of Richard Hoomes himself, but also against the claim of his children or " heirs," not as heirs, but " as contingent devisees or legatees under the will of Col. John Hoomes," claiming the property " in virtue of the will aforesaid," and connecting themselves with the testator through the said Richard Hoomes. He insisted that it was the obvious purpose and effect of this covenant to extinguish the entire contingent interest of Richard Hoomes himself, and to guard against the contingent interest of his children claiming through him " in virtue of the will aforesaid." And that such was the understanding of the parties is manifest from the clause of confirmation which follows immediately after the covenant.
If however the terms of the covenant are ambiguous, which I submit is the most that can be said of them, then they must be construed most favourably to the covenantee, and most strongly against the covenantor, for it was his duty to " " have expressed himself more clearly," and this would lead us to the same result. Quacunque via, then, the appellees are bound by the covenant of their ancestor to indemnify the plaintiff against this demand to the extent of the real assets descended to them, provided this is a covenant which runs with the land. And this brings us to the next question.
2. Does this covenant run with the land and pass to the appellant?
Gentlemen say not; because, say they, Richard Hoomes conveyed nothing by the deed containing the covenant, and only covenanted against a possibility. That possibility, however, that contingent interest, I insist, is in fact, and in contemplation of law, both an interest and an estate; an interest and estate, appreciable, valuable, and transmissible by deed, devise or descent: and the extinction of which was most beneficial to the holder of the land. 1 Lomax Dig. 467; 3 Id. 323-4; and the cases there cited. And this brings the covenant directly within the influence of the principle quoted by the gentlemen on the other side from the American notes to Spencer's Case, 1 Smith's Leading Cases 75, 107, that a covenant affects and runs with the land, " although not to be directly performed upon it, provided it tend to diminish or increase its value in the hands of the holder; " and this too when there is no tenure or privity of estate between the covenantor and the covenantee. In such case, however, it runs with the land for its benefit; but not to charge it. To do the latter there must be tenure or privity. 1 Smith's Leading Cases 107-8; Plymouth v. Carver, 16 Pick. R. 183. It might in this case, if necessary, be insisted that there was privity between the covenantor and covenantee--privity of estate to support a charge. But it is not necessary to contend for that proposition, as this covenant is clearly beneficial to the estate and not a charge upon it. It increased the value of the estate in the hands of the holder, and therefore affected and run with the land.
But the objection urged on the other side is not tenable for another reason. An estate of freehold was created by the deed in which the covenant is contained; and that estate continued and was not defeated until after the land came to the hands of the appellant. Here then is a case in which an estate of freehold was created in the covenantee by the deed containing the covenant, and the covenantee put in possession of the land; and in which, as is apparent to all, the land was made more valuable in his hands by the covenant: and this land, by a regular and unbroken chain of conveyance, has come to the possession of the appellant.
The principle established by the cases commented on by the learned gentlemen on the other side, has no application to such a case. It is an error to suppose that they shew that the covenantor must grant to, or create an estate in, the covenantee. They only shew that the covenantee must have an assignable estate to support the covenant, either pre-existing or created by the instrument containing the covenant. The existence of an estate in the covenantee, to which the covenant may attach, is the important requisite. It is wholly unimportant how or from whom he may have derived it. An examination of the cases cited on the other side will shew that they were all cases, in which there was no pre-existing estate in the covenantee, and none created by the instrument containing the covenant. The first is a leading case on the question. Awder v. Noke, Cro. Eliz. 373, 436-7, 1 Smith's Leading Cases 99. In this case there was no estate in the first grantor, and of course no estate created in or passing to the first grantee. There being then no estate pre-existing or created in the grantee, there was of course nothing upon which the assignment by the grantee could operate, and nothing to which the covenant could attach: and it was so decided.
The next case is Andrew v. Pearce, 4 Bos. & Pul. 158, 1 Smith's Lead. Cas. 99. There the estate, which was a term of years carved out of an estate tail, was avoided by the death of the tenant in tail. After the death of the tenant in tail, the assignee of the term, when it had ceased to exist, assigned over. Held, that a naked covenant could not pass as incident to a term of years which had ceased to exist; and therefore did not pass by the assignment. This is the same principle with Awder v. Noke.
And so with Nesbit v. Montgomery, 1 Taylor 84, 1 Smith's Lead. Cas. 99. The declaration stated want of title at the date of the original demise, and of course the grantee acquired nothing and could assign nothing.
All then that these cases require, is an estate in the covenantee, to which the covenant may attach, created or existing at the date of the covenant, and continuing at the time of the assignment: and our case comes fully up to these requisitions.
In New York it has been decided, and it is submitted with good sense, that whenever possession accompanies a grant or conveyance, the covenants do pass with the land to the grantee and his assignees, notwithstanding no actual title was created. Beddoe v. Wadsworth, 21 Wend. R. 120. This, I submit, is a rational decision, for it makes a covenant answer the purpose for which it was designed, namely, to support a defective title.
The only Virginia cases commented on by the counsel on the other side are, Randolph v. Kinney, 3 Rand. 394; and Urquhart v. Clarke, 2 Rand. 549. Randolph v. Kinney is precisely the same in principle with the cases of Awder v. Noke, and Nesbit v. Montgomery. There was no estate pre-existing in, or passing by, the original deed to the first grantee, and of course nothing passed by the grant of the latter to which the covenant could attach itself. When however such an estate does exist in or pass to the grantee, then a covenant may be made with him, to run with the land, even by a stranger to the title and the original deed. 2 Thomas's Coke 362; Spencer's Case, Smith's Lead. Cases, p. 82, 83; 2 Lomax Dig. 260. The case of Urquhart v. Clarke has no application to this case: The question under consideration did not arise.
But if the covenant did not run with the land, and an action at law could not be maintained by the appellant, still a Court of equity ought to give relief. Nesbit v. Brown, 1 Dev. Equ. R. 30.
It is unnecessary however to press this latter view, as the covenant unquestionably runs with the land. To shew this more conclusively, let us ask whether an action of covenant could not be maintained by the appellant against the principal grantor John Hoomes, or his heirs, on his covenant for title. That it could will not be denied. But the covenant of John and Richard Hoomes is a joint covenant, in the same deed, couched in the same words, and precisely for the same thing. Now if it runs with the land against John, the same covenant being Richard's too, must also run with the land as to him. It would be strange that under such circumstances the covenant should run with the land as to one co-covenantor, and be in gross as to the other.
3. But it is objected in the third place, that a part of the land has been aliened, and that covenant will not lie for an assignee of a part of the subject, because the covenant is an entire thing, and the remedy on it cannot be apportioned. For this proposition, the only authority cited is a remark of Mr. Preston, quoted in a note to 2 Lom. Dig., p. 263. On this subject it is enough to say, that Mr. Preston, in this remark, if it is properly construed on the other side, contradicts himself, (see the first part of the remark quoted,) and is contradicted by authority. 2 Thomas's Coke 362; Platt on Covenants 495; Stevenson v. Lambard, 2 East's R. 575.
We have thus ascertained, 1. That the covenant bound the heirs of the covenantors to protect Apperson and his assignees against the claim of the appellees. 2. That this covenant runs with the land. 3. That it is not extinguished by the alienation of part of the land.
4. Let us enquire in the fourth place, whether this Court can hold the appellees responsible for the real assets descended to them in the State of Kentucky, by repelling to the extent of those assets their demand in this case?
We say the jurisdiction unquestionably exists; and it would be difficult to find a case demonstrating more forcibly than this, the necessity of its existence and the propriety of its exercise.
I shall not deny that real estate always, (and even personal estate to the extent stated by the opposite counsel,) must be governed by the lex rei sitæ . Nor will I deny that, in the exercise of the jurisdiction now claimed for this Court, it must, to some extent, enquire into the laws of other countries. But do these admissions concede inconveniences and difficulties of a character to prevent the exercise of the jurisdiction invoked?
Before considering the question, let us look a little to the facts of the case, and the relative position of the home and foreign jurisdiction.
Here was the domicil through life of the original testator Col. John Hoomes. Here was the domicil of Richard Hoomes the ancestor of the appellees. Here is the domicil of the appellant; of the appellees; of the administrator, and of all the creditors of Richard Hoomes, of whom we have any knowledge. In this Court and in this suit, can they all be convened. In addition to all this, the appellees who have converted the foreign assets are irresponsible. The real assets alone are beyond the jurisdiction of this Court, and subject to a foreign jurisdiction: And the question is, where, under such circumstances, can justice and equity be most safely and conveniently administered? In Kentucky where the real assets alone are, or here where all the parties are; where all the important evidence is; where the creditors are; and where all the decedents lived and died? The answer can only be in favour of the jurisdiction of this Court.
Is there any thing, then, to prevent the exercise of this obviously wholesome jurisdiction? It has been suggested from the bench that there is: that the foreign assets may have been subjected, under the foreign jurisdiction, or may now be subject, to the claims of creditors of Richard Hoomes; and thus the appellees would be made to lose their father's lands in Kentucky and their own land here.
The difficulty is, in this case at least, merely an abstract one; for Richard Hoomes has been dead for nearly thirty years; and no claim has been presented against the land or the heirs in Kentucky. But the difficulty is in fact more specious than real. It would apply with precisely the same force were the lands in Virginia and not in Kentucky; and in each case the protection against it, is alike simple and the same. It is simply to plead and prove the fact, that the lands descended have been subjected, or are subject, to claims against the ancestor, having precedence over the claim asserted. A failure to plead and prove it, were the whole of the Kentucky lands now in Virginia, would subject the appellees in this very cause to all the evils suggested; whilst on the other hand, the appellees may, in this same cause, secure to themselves complete protection from the claim of the appellant, by proving the fact suggested, if it exists. I see therefore no difficulty in the suggestion. 1 Wheaton's Selwyn 490, 492; 2 Tuck. Com. 112; 3 Tuck. Black. 421, in notes. It is true, that in an action at law against an heir on the bond of his ancestor, the Court cannot notice lands descended in a foreign state. The reason is, that on admission by the heir of lands by descent, the judgment and execution at law is against the lands, and not against the heir personally; and the lands will be extended. But as legal process cannot run into a foreign jurisdiction, proof of lands there would be unavailing. But a Court of equity, acting on the person, may compel the heir to convey land in a foreign country, or if already conveyed, may require him, as a condition upon which the aid of the Court will be extended to him, to account for the proceeds: And this is what we ask. The creditors, if any, being made parties, all equities would be settled in one suit, by a Court of competent jurisdiction; and the decree could be pleaded in Kentucky against any creditor renewing his claim against the heir in that state. And this Court would enjoin the proceeding, if the creditor should be within its jurisdiction. Wedderburn v. Wedderburn, 17 Cond. Eng. Ch. R. 208; affirmed on appeal; 18 Id. 585. There could not well be a stronger case of the exersise of the power under consideration than the case cited. So, too, a proceeding by a creditor in Kentucky might be arrested there, at the instance of the heir, on his shewing to the Court that the matter was " res adjudicata " in Virginia. Booth v. Leycester, 15 Cond. Eng. Ch. R. 580; and cases cited in the note to that case.
The general doctrine of equity on this subject is " that the Court of chancery, having authority to act upon the person, may indirectly act upon real estate, situate in a foreign country, through the instrumentality of this authority over the person; and that it may compel him to give effect to its decree respecting such property, whether it goes to the entire disposition of it or only to affect it with liens or burthens." Story on Conf. of Laws, § 544, 545; Brodie v. Barry, 2 Ves. & Beame 127; Massie v. Watts, 5 Cranch's R. 148; Farley v. Shippen, Wythe's Rep.; Guerrant v. Fowler, 1 Hen. & Munf. 5.
Now we do not ask this Court to act directly on the Kentucky lands; all that we ask is, that the appellees, who are seeking the aid of this Court, shall be compelled to perform the covenant of their ancestor, to the extent of the value of the lands received by descent from him in the foreign jurisdiction. And we do this with the greater confidence in this case, because there is in truth no conflict of law in relation to these Kentucky lands. The Kentucky law of descents and our own is the same; and in administering the foreign law in this case, we are but administering our own.
But it is objected, by Mr. Barton, that parol proof of a written or statute law is inadmissible. The objection comes too late. It was not made in the Court below by exception, and cannot be made in argument here. But if in time, the objection is untenable. The laws of a foreign country, written or unwritten, may be proved by an expert, as a fact. Baron De Rodes' Case, 55 Eng. C. L. R. 246 to 254; Cocks v. Purday, 61 Id. 269.
5. And lastly, as to the fact of lands in Kentucky by descent from Richard Hoomes.
It will be observed that the appellees had no claim to the Kentucky lands under their grandfather Col. John Hoomes. He died testate, and in the events which have occurred, these Kentucky lands vested absolutely in Richard Hoomes, as he complied with the conditions of the devise, by leaving children. His title to the lands being thus consummate, he had constructive seisin thereof, (if seisin were necessary,) without actual pedis positio. Green v. Liter, 8 Cranch's R. 228, 248-9. And by his death intestate, the law cast the seisin on his heirs, (the appellees,) and they became at once constructively seised of all the lands then unsold. (Same case.)
But neither actual nor constructive seisin is necessary to support a descent. The rule " seisina facit stipitem " has been abolished both in this state and in Kentucky; not as contended by Mr. Morson, by reason of the statutory provision in relation to writs of right; 1 Rev. Code, ch. 128, § 90, p. 510; but as a rule of descent, by the first section of the act of descents. 1 Rev. Code 355, ch. 96, § 1; 1 Lomax Dig. 594; 2 Tuck. Com. 189. And the Kentucky statute in relation to this matter, is proved to be a literal transcript of our own.
The idea that the heirs, by suffering their own lands to be sold for taxes and themselves becoming the purchasers, could thereby break the descent and cease to be heirs, does not seem to require a grave refutation at our hands. I submit that the decree is erroneous and should be reversed.
MONCURE, J. after stating the case proceeded:
This case has been argued in this Court with great ability by the counsel on both sides. Various questions of law and fact were raised and discussed in the case, as
1st. Whether the covenant of Richard Hoomes had been broken? And if broken,
2d. Whether the right of action therefor passed to the assignee Dickinson? If so,
3d. Whether lands descended in Kentucky could be regarded as assets by descent in any proceeding in Virginia? And if so,
4th. Whether in fact any lands in Kentucky descended from Richard Hoomes to his children; and if they did, whether they were not forfeited for non-payment of taxes, and whether such of them as were held by the children were held by them as purchasers from the State of Kentucky, and not as heirs of their father.
I will now proceed to consider the question first above stated: that is, whether the covenant of Richard Hoomes has been broken? The only ground on which it is contended to have been broken is, that his children have recovered as purchasers under the will of John Hoomes the elder, one fourth of the land claimed by Dickinson to have been derived under the deed from John Hoomes the younger to Apperson, in which the said covenant is contained. And whether broken or not, depends upon the proper construction of the covenant. If it be a covenant of general warranty, or a covenant of special warranty against the claims of the said children, then it has been broken. But if it be a covenant of special warranty only against the claims of the covenantor and his heirs, (technically and properly speaking,) and all persons claiming by, from or under them, then it has not been broken. Let us now see what is its proper construction.
The covenant is in these words: " And the said John Hoomes, for himself and his heirs, and said William Hoomes, Richard Hoomes, Armistead Hoomes, and Wilson Allen and Sophia his wife, for themselves and their heirs, as contingent devisees or legatees under the will of Col. John Hoomes, late of the Bowling Green, deceased, by whom said land was devised to John Hoomes, do hereby covenant and agree to and with the said Samuel A. Apperson, that they will warrant and defend the fee simple estate and full and complete right and title to said two tracts of land, to him and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming by, from, or under them, in virtue of the will aforesaid, and do relinquish and fully confirm to said S. A. Apperson all the right they or their heirs now have, or might or may hereafter have, to said land or any part thereof, to him and his heirs and assigns forever, free from them, said John Hoomes, William Hoomes, Richard Hoomes, Armistead Hoomes, and Wilson Allen and Sophia his wife, late Sophia Hoomes, and their heirs, and of all other persons in the world."
If the latter branch of the clause, commencing at the words, " And do relinquish and fully confirm," had been omitted in the deed, there would have been no ground whatever for contending that there was any covenant of general warranty on the part of Richard Hoomes. The only question then would have been, whether the covenant of special warranty contained in the former branch of the clause was confined to the claims of the covenantor and those claiming under him, or extended to the claims of his children, whether claiming under him or otherwise. Let us first consider the former branch of the clause separately and ascertain the nature and extent of the covenant therein contained. There is nothing peculiar in that branch of the clause, but the words " as contingent devisees or legatees under the will of Col. John Hoomes; " and the words, " in virtue of the will aforesaid." Strike out those words, and the covenant is clearly confined to the claims of the covenantor and those claiming under him. The remaining words are precisely those which are generally used to express such a covenant of special warranty: " And the said Richard Hoomes, & c., for themselves and their heirs, covenant with the said Apperson that they will warrant and defend the estate to him, and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person claiming by, from or under them." These in substance are the remaining words used, and by no other words or form of expression could such a covenant of special warranty be more plainly or appropriately expressed. In this construction every word has its proper signification. The covenantors intended to bind their heirs, and therefore covenanted for themselves " and their heirs; " and they covenanted to warrant the estate against the claims of " " their heirs," not as purchasers from John Hoomes the elder, but in the technical and proper sense of the word as persons claiming by descent from them. Greenleaf in his treatise on evidence, vol. 1, § 287, note 3, properly says that " the rules of interpretation of wills, laid down by Mr. Wigram in his admirable treatise on that subject, may be safely applied, mutato nomine, to all other private instruments." They are contained in seven propositions as the result both of principle and authority, of which the two first are as follows:
" I. A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.
II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself, in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered."
The word " heirs," in its strict and primary sense is a word of limitation; and although it may be capable of some popular or secondary interpretation, yet, being in this case sensible with reference to extrinsic circumstances, it must, according to the foregoing rules, be construed in its strict and primary sense, unless from the context of the instrument, it appears to have been used in a different sense. Does it appear, from the context, to have been used in a different sense? I am now confining my remarks to the former branch of the clause aforesaid. We have seen that the only peculiarity therein consists in the words, " as contingent devisees or legatees under the will of Col. John Hoomes," and the words " in the will aforesaid." Do these words take from the word " heirs" in the context, its strict and primary meaning, and give it a popular and secondary signification? The covenant with the addition of these words is in substance as follows. " And the said Richard Hoomes & c., for themselves and their heirs, as contingent devisees or legatees under the will of Col. John Hoomes, covenant with the said Apperson, that they will warrant and defend the estate to him and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person claiming by, from or under him, in virtue of the will aforesaid. " I do not think the additional words were intended to enlarge the covenant, or to extend it to persons not claiming by, through or under the covenantors. I rather think if they were intended to have any effect at all on the covenant, they were intended to restrict it to persons claiming as contingent devisees, or in virtue of the will, and by, through or under the covenantors. So that a claim of the covenantors or their heirs in any other right than in virtue of the will would not come within the scope of the covenant. The chief object in using these words doubtless was to shew the interest of Richard Hoomes and others in the subject, and their reason for uniting in the execution of the deed. The land had been devised to John Hoomes the younger in fee; and he had sold and conveyed it to Apperson, and received the purchase money. But Richard Hoomes and others were devisees in remainder on the contingency of their surviving John Hoomes the younger, and of his dying without issue: And they were willing to relinquish to the purchaser their contingent rights, and to warrant the title against all persons claiming under them in virtue of those rights. They therefore covenant " as contingent devisees," and against claims under them " in virtue of the will." To give to these additional words the effect of extending the covenant to persons not " claiming by, through or under" the covenantors, would be to render inoperative the words " by, through or under." And thus words which are plain, usual, and well understood, would be rendered ineffectual by a strained construction of words which are at least very equivocal. Now it is a settled rule of construction, that effect should be given, if possible, to every word contained in the instrument: and especially that words of common and settled signification should have their full force and effect.
I will present another view of this part of the subject. The covenant can be extended to the claims of the children as purchasers under the will of John Hoomes the elder, only, I presume, by construing the word " heirs" as " " " " children." The word " heirs" as referring to Richard Hoomes & c., occurs twice in that part of the covenant now under consideration. Where it first occurs, it clearly is used in its strict and primary sense, and does not mean " children." The covenantors bind themselves and their " heirs." If the word in this connection be not construed in its strict and primary sense, then there is nothing in the covenant to bind the heirs, whether they have assets by descent or not. The same word where it again occurs in the same sentence ought to receive the same construction; at least without very strong reasons for giving it a different one; and none such appear in this case.
I think therefore it may fairly be concluded that the former branch of the clause before quoted, construed by itself, contains no more than a covenant of special warranty against the claims of persons claiming under the covenantors. Let us now see whether it contains any thing more when construed in connection with the latter branch of the clause. That branch is separated from the former only by a comma, and is in these words:
" And do relinquish and fully confirm to said S. A. Apperson all the right they or their heirs now have, or might or may hereafter have, to said land or any part thereof, to him and his heirs and assigns forever, free from the said John Hoomes & c. and their heirs and of all other persons in the world."
If the words of this latter branch of the covenant were such as (taken alone) would be construed to import a covenant of general warranty, they would not be so construed, taken in connection with the former branch of the covenant. Otherwise the two branches of the clause would be inconsistent with each other, and the former would contain a covenant of special, and the latter a covenant of general warranty. A deed should be construed according to the intention of the parties, as the same may be gathered from the whole instrument. It would be absurd to suppose that the covenantors intended to give a general warranty against all the world, after carefully giving a special warranty only against persons claiming under them in virtue of the will. All covenants of warranty have the same object, but to a greater or less extent; and the rule as laid down by Sugden in his Law of Vendors, vol. 2, p. 94, is that " where restrictive words are inserted in the first of several covenants having the same object, they will be construed as extending to all the covenants, although they are distinct." This rule is supported by the following authorities. Nervin v. Munns, 3 Lev. 46; Broughton v. Conway, Dyer's R. 240; Browning v. Wright, 2 Bos. & Pul. 13; Foord v. Wilson, 4 Eng. C. L. R. 205; Nind v. Marshall, 5 Id. 95. In the last cited case some of the covenants were restrictive, but one of them was general against " all persons whatsoever." Dallas, C. J. said, " I think ‘ all persons whatsoever’ must be construed to mean persons of the description in the other covenants; that is persons claiming under the covenantor, or persons claiming under them; and that they are in the nature of sweeping and comprehensive words, introduced to give the largest effect to the special words; reference being had to their special nature, and as such ranging under known rules of construction, and to be explained and applied as I have already stated." The same might be said of the expression " all other persons in the world," if the words of the latter branch of the clause were such as, taken alone, would import a covenant of general warranty in the broadest sense of the term.
But suppose the latter branch of the clause, taken alone, could be regarded as importing a general warranty, what is the subject to which the warranty refers? Is it the land itself; or is it merely the right of the covenantors thereto? Unquestionably the latter. " And do relinquish and fully confirm to the said Apperson all the right & c to said land," are the words used. Richard Hoomes & c. were contingent devisees; they covenanted as contingent devisees; and they relinquished to the purchaser from John Hoomes the younger their right as contingent devisees. And if this relinquishment imports a covenant of general warranty, it is only of their right as contingent devisees. In Sweet v. Brown, 12 Metc. R. 175, A conveyed to B all his right, title and interest in and to certain real estate described by metes and bounds, with the usual covenants of seisin and warranty. It was held that the covenants were limited to the estate and interest of A in the granted premises; and were not general covenants extending to the whole parcel described in the deed. In Allen v. Holton, 20 Pick. R. 458, a similar decision was made. See also Blanchard v. Brooks, 12 Pick. R. 47. If Richard Hoomes only warranted his right as contingent devisee, his warranty was of course not broken by the claim of his children to their rights as contingent devisees and purchasers under the will of their grandfather.
But does the latter branch of the clause import any covenant at all; or at least any covenant as separate and distinct from the covenant of special warranty contained in the former? I rather think not. I think its only office was to shew that the relinquishment and confirmation were intended to be as full and complete as possible.
Whether therefore the two branches of the clause be construed separately or together, I think they import no more than a covenant of special warranty on the part of Richard Hoomes against the claims of persons claiming under him. This construction, instead of being weakened, will be strengthened and confirmed if we look to the whole deed, to the situation of the parties, and the relation which they respectively bore to the subject of the conveyance. It is not pretended that Richard Hoomes participated in any way whatever in the consideration which was paid for the land. He seems to have had no interest in the sale. He had a contingent interest in the land, which he was willing to relinquish to the purchaser; and he was willing also to warrant the land against all persons claiming under him as contingent devisee. He therefore joined in the execution of a deed, containing such a relinquishment and covenant expressed in words as apt and suitable as any that could have been used to express them. Would it be reasonable to depart from the strict and primary sense of these words and place upon them a strained construction, for the purpose of making him relinquish, not only his own contingent right, but also the contingent rights of others; and covenant, not only against all persons claiming under him, but also against his children claiming as purchasers under their grandfather, and even against the whole world? It was an act of liberality on his part to have relinquished his own right without consideration. While he was willing to do that, he might not have been willing, and probably was not willing, to relinquish the rights of others or incur a personal liability, on account of rights over which he had no control. An intention to make a relinquishment or incur a liability so extensive should be plainly expressed. If the words used are equivocal, and import, at least as strongly, a more limited and reasonable intention, they should be construed according to such latter intention. In this case we have seen that they import more strongly, if not plainly, an intention on the part of Richard Hoomes only to relinquish his own rights, and covenant against persons claiming under him.
It is quite probable that when Richard Hoomes executed the deed, he had no idea that his children could have any claim as purchasers under their grandfather's will; but supposed, if he thought at all on the subject, that, in the event which has happened, they could only claim by descent from him. If he had then supposed that they would be entitled as purchasers in the event that has happened; and had intended to relinquish their right, or rather to covenant against it, he would have expressed his intention in plain language, and not in words which import an intention only to relinquish his own right, and to covenant against persons claiming under him. The fact that he has used such words, I think conclusively shews that he intended only to relinquish his own right, and to covenant against persons claiming under him: and that, whether he supposed, or did not suppose, that his children would be entitled as purchasers in the event that has happened. If he so supposed, we have already seen that he would have used different language to have relinquished their right or covenanted against it. If he did not so suppose, then of course he only intended to relinquish his own right, and to covenant against persons claiming under him; for, not being aware of any right of his children, he could not have intended to relinquish or covenant against it. And considering himself the proprietor of the right which this Court has since decided to be theirs, he must have considered the relinquishment of his own right and covenant against persons claiming under him as covering the whole ground.
Suppposing that Richard Hoomes when he executed the deed was not aware of the right of his children; whether or not he would have covenanted against it if he had been aware of it, is matter of conjecture merely, and can have no influence in the decision of the question we are now endeavouring to solve; which is, whether he did actually covenant against it.
It has been argued with some force that John Hoomes the vendor, having joined in the same covenant with the contingent devisees, it cannot be restricted as to the latter without being also restricted as to the former; which, it is thought, would be unreasonable. It does not, I think, follow as a necessary consequence, that because the covenant of the vendor and contingent devisees is contained in the same clause, or even in the same words, it must therefore have the same extent as to both. Suppose, for example, that the latter part of the clause before quoted could be considered as importing a general warranty. Redendo singula singulis, the vendor having conveyed the estate itself might be considered as intending to warrant the estate itself, while the contingent devisees having only relinquished their right as such, might be considered as intending to warrant only that right. But without deciding whether the covenant of warranty on the part of the vendor was general or special, I do not admit that an intention on his part to give a special covenant only would have been unreasonable; nor, if it would, that that consideration can have much, if any, effect on the construction of the covenant on the part of the contingent devisees. In England the covenants of the vendor are generally of a restricted nature. Lord Eldon, in Browning v. Wright, 2 Bos. & Pul. 23, thus describes the common course of business in such a case. " An abstract is laid before the purchaser's counsel; and though to a certain extent he relies on the vendor's covenants, still his chief attention is directed to ascertaining what is the estate, and how far it is supported by the title. The purchaser therefore not being misled by the vendor, makes up his mind whether he will complete his bargain or not, and if any doubts arise on the title, it rests with the vendor to determine whether he will satisfy those doubts by covenants more or less extensive. Prima facie therefore in the conveyance of an estate, we are led to expect no other covenants than those which guard against the acts of the vendor and his heirs." In Virginia the practice is different; and while, on the one hand, less attention is directed to the title than in England; so, on the other, a covenant of general warranty is usually required and given. Such a covenant seems not to be entitled to the importance which is attached to it by our practice; and it would doubtless be better, as in England, to pay more attention to the title, if not to attach less importance to a general warranty. But why in this case should a covenant of general warranty have been given? It was known both to vendor and vendee that the title of the former was not absolute. The vendor claimed under a will which was exhibited to the vendee, and under which his estate was subject to be defeated by his death without issue. Now, whether he intended to sell precisely such estate as he had, or to sell and warrant a greater estate than he had, was matter of contract between the parties: Prima facie, a vendor intends only to sell such estate as he has, where his estate is of a limited nature, or subject to a contingency. In this case the vendee might choose to run the risk of losing the estate in the event of the vendor's dying without issue, receiving of course an equivalent in an abatement of the price; rather than pay the price of the absolute estate, and rely on the covenant of the vendor for his indemnity. Unless the vendor had other estate than that devised to him by his father, his covenant of general warranty would have afforded little or no indemnity against the claim of the contingent devisees; for the same contingency which would occasion a breach of his covenant would deprive him of the means of paying damages therefor. The vendee would place little or no reliance on the covenant of the vendor as a means of indemnity in such a case, and unless the contingent devisees would join in the deed, would of course require an abatement of the price. The contingent devisees did not all join in the deed, and to the extent of the interests of those that did not join, a proportionable abatement was doubtless made. Whether any abatement was made on account of the contingent interest of the children of Richard Hoomes does not appear. Probably not, because probably no such contingent interest was known to exist. But if no such interest was known to exist, it is on that account more probable that the vendee relied on the relinquishment and covenant of Richard Hoomes, than on any covenant of John Hoomes to protect him against an interest which he then supposed to be vested entirely in Richard Hoomes. In this case therefore a special covenant on the part of John Hoomes would at least not have been unreasonable. But even if it would, it certainly would not have been more so than a general covenant on the part of Richard Hoomes.
I am therefore of opinion that the covenant of Richard Hoomes has not been broken; and if the other, or even one of the other, Judges agreed with me in this opinion it would be unnecessary for me to say anything more; but as that is not the case, I must now proceed to examine and consider the other questions.
2d. Did the covenant run with the land; or has Dickinson the assignee of the land a right of action for a breach of the covenant?
It is a general rule of the common law that choses in action are not assignable. But to this general rule there are exceptions, one of which is, that covenants running with land pass with the land to the assignee thereof. Of the covenants usually contained in a conveyance of land, some run with the land and some do not. Those which are broken, if at all, at the instant of their being made, such as the covenant of seisin, of right to convey, or against incumbrances, do not run with the land; while those which may be broken afterwards, such as the covenant of warranty, for quiet enjoyment, or for further assurance, do run with the land. But even the latter, when broken, cease to run with the land from the time they are broken; for a broken covenant is a mere chose in action, which by the common law is not assignable; being no longer inherent in the land, which alone gives to the covenant its assignable quality. The covenant of Richard Hoomes was a covenant of warranty, and was not broken at the time of the assignment of the land to Dickinson; it therefore passed with the land to him, unless prevented from so passing by the objection that the estate conveyed to him was insufficient to support the covenant, or the objection that no estate at all passed to him from Richard Hoomes the covenantor. Let us first examine the objection, if in fact such an objection can be considered as having been made, that the estate conveyed to Dickinson was insufficient to support the covenant of warranty even on the part of John Hoomes, the grantor of the estate. That it is necessary that some estate should be vested in the covenantee to make a covenant of warranty effectual even between the contracting parties, is undoubtedly true, and results from the very nature of that covenant. The covenants of seisin and of right to convey, are effectual covenants; though no estate be vested in the covenantee; because they are broken, if at all, at the instant of their being made, without any further act or default of the covenantor. But the covenant of warranty and of quiet enjoyment, which are the same in effect, can only be broken by an eviction or ouster by title paramount. They therefore presuppose the possession of an estate by the covenantee, and of course cannot be effectual where no such possession has passed to him. A deed purporting to convey land which is in the adverse possession of a third person, will not only not support a covenant of warranty, but is altogether null and void. But if the grantor be in possession of the land at the time of the execution of the deed, his possession and his estate, whatever it may be, will pass to the grantee, and will support a covenant of warranty contained in the deed. This distinction is well illustrated by the case of Slater v. Rawson, 1 Metc. R. 450, and again in 6 Metc. 439. By the deed, in which a covenant of general warranty was contained, in that case a tract of land containing 130 acres was conveyed by metes and bounds. A man named Jacobs had a title paramount to 22 acres of the land, which was therefore yielded up to him by the assignee of the land; who thereupon brought an action on the covenant of warranty. The defendant contended that he was never seised of the land in controversy, and that therefore nothing passed by his deed. A verdict was rendered for the plaintiff on a question reserved by the Judge. The Supreme court awarded a new trial. Dewey, J. in delivering the opinion of the Court, after stating that the defendant at the time of making his conveyance had no legal title to the 22 acres of land, proceeds to enquire whether the defendant was seised in fact, and uses the following language: " The case as stated by the parties, in the report, finds that the premises, which are the subject of this controversy, were a part of a large tract of wood land unenclosed by fences, and of which there had been no actual occupation by any of the parties. Taking these facts to be correctly stated, there was clearly no seisin in fact in the defendant acquired by an entry and adverse possession. The rule as to lands that are vacant and unoccupied, that the legal seisin follows the title, seems to be applicable here; and having ascertained in whom is the legal title, that also determines in whom the seisin is." " The covenant of warranty is wholly ineffectual, as no land passed to which it could be annexed; and the result therefore from this view of the case, is that the plaintiff cannot maintain his action." 1 Metc. R. 456-7. On the new trial evidence was offered to prove that the defendant and his father under whom he claimed, had exercised acts of ownership on the land, and that he was in fact seised and possessed thereof at the time of the execution of the deed. A verdict was rendered for the plaintiff as before, subject to the opinion of the Supreme court. That Court rendered judgment on the verdict. Wilde, J. in delivering the opinion of the Court, after reviewing the evidence, says: " It therefore clearly appears by the evidence that the defendant at the time of his conveyance, had the actual possession of the premises, and that he had a valid title against all the world, except the true owner of the Jacobs lot. If any other person had entered on the land in dispute, he might have maintained trespass against him; or if he had been ousted he might have maintained a writ of entry. But the defendant's counsel contend that although he had possession of the land in dispute, yet he had not such a possession as would amount to a disseisin of Jacobs, who afterwards entered on the premises and ousted the plantiffs; and therefore that the defendant was never actually seised of the land in dispute, and that no title thereto passed by his deed to the grantees; so that the covenant of warranty could not run with the land and pass to their assignees." The learned Judge after making several observations and citing various authorities relating to the legal difference between seisin and possession, further says: " It is not necessary however in the present case to decide the question whether there is any legal distinction between the words seisin and possession; for if the defendant was in possession when he conveyed, & c., claiming to hold the whole land conveyed, he had a good right to convey his title whatever it was. His estate passed by his deed to the grantees, and all his covenants were binding." " It is universally true that a party in possession of land, claiming title, may make a legal conveyance, and his title by possession will pass to his grantee. Actual possession of property gives a good title against a stranger having no title."
In Beddoe v. Wadsworth, 21 Wend. R. 120, the Supreme court of New York decided that " an assignee of covenants of warranty and for quiet enjoyment may maintain an action on the covenants where possession is taken under the deed and there is a subsequent eviction, although at the time of the execution of the deed the grantor had no title." To the same effect also is the case of Fowler v. Poling, 2 Barb. R. 300, and 6 Barb. R. 165.
If a covenant of warranty contained in a deed executed by a person in possession of land did not run with the land, where there is an outstanding paramount title, the most serious inconveniences would follow. The covenant of warranty is the only covenant inserted in many, if not most, of the deeds that are executed in this country, and according to the general understanding of our people it runs with the land, and may be resorted to for the indemnity of the holder whenever he is evicted by title paramount. As I have already had occasion to remark, more attention is paid to the covenant of warranty and less to the title with us than in England. A purchaser is often satisfied without looking further into title, when he finds that several of the deeds under which he claims contain the covenants of warranty of persons, in the continuance of whose responsibility he has perfect confidence. But of what value would be these covenants if an outstanding paramount title would render them ineffectual? They could only be broken by an eviction or ouster by title paramount; and yet the very existence of such an outstanding title would render the covenant ineffectual! So far from affording any protection to the assignee, they would afford none even to the covenantee. In some cases they might be of benefit, as for instance where an actual disseisin of the rightful ower by the grantor could be proved. But this limitation would so curtail the operation of the covenant, and throw so much doubt and difficulty over it as to render it of little value.
I think therefore that reason and authority unite in shewing that wherever the deed passes the possession the covenant of warranty is effectual and runs with the land.
The case of Randolph v. Kinney, 3 Rand. 394, is not in conflict, but in accordance, with the distinction I have referred to. In that case all the parties claimed under Stuart who was the proprietor of 331 acres of land. In 1748 Stuart conveyed 57 acres of the land to James Miller. In 1763 Stuart conveyed the whole 331 acres to John Miller; thus including the 57 acres he had before conveyed to James Miller. In 1784 John Miller conveyed the whole 331 acres to Randolph, who in 1808 conveyed it to Kinney. Judge Carr in his opinion, in which the other Judges concurred, uses the following language: " Those claiming the 57 acre tract under the deed of 1748 from Stuart to James Miller, were in possession by virtue of that conveyance. The subsequent deed therefore from Stuart to John Miller for the whole tract, although it included these 57 acres, could pass neither the possession nor the title; and as Miller had neither possession nor title to these 57 acres, he could convey neither to Randolph, nor Randolph to Kinney. The clauses of general warranty in the deeds from Stuart to John Miller and from Randolph to Kinney, could not operate as real covenants, unless the vendees entered; and could pass to the assignee only along with the land and as incident to it. But here the land not passing, the warranty could not pass. A disseisor may convey and warrant the land; for there may be a fee simple in a disseisor. But a person against whom there is an adversary possession, cannot make a warranty which will pass to an assignee, because he cannot convey." Thus it is manifest that the opinion of Judge Carr, that the warranty in that case was ineffectual was based entirely on the fact that the possession of the land in controversy at the time of the conveyance, was adversary, and therefore did not pass to the grantee.
If a covenant of warranty contained in a conveyance from a person in possession but without title, is effectual and will run with the land, it would seem, a fortiori, that where the grantor is not only in possession but has a title to the land, though not such a title as is conveyed and warranted to the purchaser; the covenant of warranty will be effectual and will run with the land. On this subject see the notes of the American editor to Smith's Leading Cases, 43 Law Lib., p. 122, citing the case of Balley v. Wells, 3 Wils. P. 36. The case of Andrew v. Pearce, 4 Bos. & Pul. 158, might seem at first view to be a contrary decision. But in that case the lease for years by a tenant in tail had become void by the termination of the estate in tail, and after it had thus become void it was assigned to the plaintiff. The land was not conveyed, but the lease was assigned to the assignee. And Sir James Mansfield, Ch. J. said: " The lease is stated to have become absolutely void by the death of Peter Best, without heir male. The lease then having become absolutely void, what could be the operation of the assignment by Bennett to Andrew? He could neither assign the lease nor any interest under it, because the lease was gone. What right of any sort had Bennett? If any thing it could only be a right of action on the covenant, and that could not be assigned by law" & c. Now in the case under consideration, John Hoomes the younger at the time of his conveyance, was seised of an estate in fee though defeasible; and he conveyed an estate in fee simple with covenant of warranty. So far therefore as John Hoomes the grantor of the estate is concerned, it seems to be as strong a case as well could be to make a covenant of warranty effectual, and run with the land.
But it is objected that the covenant under consideration was made by Richard Hoomes, and that no estate passed from him to the covenantee. Let us now examine this objection, which was chiefly relied on in the argument. It can hardly be said that no estate passed from Richard Hoomes; or at all events, that he was a stranger to the subject matter of the contract and the conveyance. He had in fact an interest in the subject; an interest which depended on the double contingency of John's dying without issue living at his death, and of Richard's surviving him. The parties doubtless supposed that his interest was even greater than it was, and that it depended on the single contingency of John's dying without issue living at his death. This Court however has decided that his interest depended on the double contingency aforesaid. 1 Gratt. p. 302. If that double contingency had occurred, the deed would have operated, at least by estoppel, to pass the interest of Richard Hoomes to the purchaser, and the covenant would then undoubtedly have run with the land. But as John was seised of the estate in fee, and conveyed it with covenant of warranty, Richard's joining in the deed was a confirmation of the conveyance, so far as he was concerned; and if it be necessary, to make a covenant run with the land, that some estate should pass from the covenantor to the covenantee, I think it might well be contended that this case comes up to the requisition.
But is it necessary that some estate should pass from the covenantor to the covenantee in order that the covenant may run with the land? I think not. In the notes of the learned English annotator to Spencer's Case, 43 Law Lib., p. 99, he says, " where such a covenant, (that is a covenant for something relating to the land,) is made, it seems to be of no consequence whether the covenantor be the person who conveyed the land to the covenantee, or be a mere stranger. Thus in the Prior's Case reported in the text, and in Co. Litt. 384 b, the Prior was a stranger to the land of the covenantee; and there is a good reason for this assigned in the above passage in Co. Litt., where the law is said to be so, to give damages to the party grieved; in other words, in order that the person who is injured by the non-performance of the covenant, who is always the owner of the land pro tempore, may be also the person entitled to the remedy upon it by action." But while on the one hand it seems that the benefit of a covenant runs with the land, though the covenantor be a stranger to the land; so, on the other, it would seem that the burden of a covenant in no case runs with the land; in no case, I mean, in which the relation of landlord and tenant is not created by the deed. In regard to covenants entered into by the owners of land, the same learned annotator says: " great doubt exists whether these in any case run with the lands so as to bind the assignees of the covenantor. One inconvenience which would be the result of holding them to do so is, that the assignee would frequently find himself liable to contracts of the very existence of which he was ignorant, and which perhaps would have deterred him from accepting a conveyance of the land, if he had known of them; and the reason assigned in the first Institute for allowing the benefit of a covenant relating to the land to run therewith, viz: to give the remedy to the party grieved, does not apply to the question respecting the burden thereof." Id. p. 101. See also the notes of the American annotator. Id. p. 137. The law is laid down to the same effect in 2 Lomax's Dig., p. 260, § 29, 30, 31. The principle thus stated by these profound jurists is opposed by no authority I have met with, and is most consonant with reason and conscience. There may have been good reason under the feudal constitution for requiring that the warranty should accompany the estate and exist only between the donor and donee. But the technical warranty which formerly existed has been altogether disused, if not abolished; and its place is now supplied by covenants, which better suit the present condition of things. I can see no reason why these covenants, if in their nature they are such as can run with the land, should not run with the land as well when they are made by a stranger as when they are made by the donor; but I can see many reasons for the contrary. A person may be willing to purchase land notwithstanding a flaw in the title, if he can fortify it by proper covenants. The owner may not be sufficiently responsible, but may be able to procure the assistance of responsible friends, or creditors, or others may have sufficient interest to join him in the covenants. But what would these covenants be worth if they could not be enforced by an assignee of the land? A covenant of seisin, or of right to convey, would never be given in such a case, because it would be known to the parties that as soon as made it would be ipso facto broken. A covenant of warranty, or for quiet enjoyment, would be the most appropriate covenant for such a case; and yet, to make that covenant effectual, it would be necessary, according to the doctrine contended for, that the covenantee should always retain the property.
I am therefore of opinion that the covenant of Richard Hoomes runs with the land even though he should be considered as a stranger to the land. It is perhaps proper that I should express the opinion I entertain, that even if the covenant did not run with the land, an assignee would have a right to enforce it for his benefit in the name of the covenantee. " Where the covenants entered into with a purchaser are covenants in gross, and he afterwards sells, the purchaser from him, being entitled to the benefit of the former covenants, can compel him to allow his name to be used for the purpose of enforcing the covenants." This is the language of Sir Edward Sugden, 2 Sug. on Vend. 726; and the authority he cites for it, is Riddell v. Riddell, 10 Cond. Eng. Ch. R. 183. I am also of opinion that if there be an unbroken chain of covenants of the same kind running through all the mesne conveyances, even though they be not covenants running with the land, a Court of equity will give the assignee the benefit of any of the remoter ones. " A Court of equity will make the party immediately liable, who is or may be, at law or in equity, made ultimately liable. Thus, for example, if a chose in action not negotiable at all, or not negotiable by the local law, except to create a legal right of action between the immediate debtor or endorser and his immediate endorser or assignee, should be passed to a remote assignee or endorsee, the latter would be entitled in equity directly to sue the party who was ultimately or circuitously liable for the debt to the antecedent holder or creditor." This is the language of Story, 2 Equ. Jur. § 1250; and the authority he cites in illustration of it, is the case of Riddle v. Mandeville, 5 Cranch's R. 322. See also 43 Law Library, p. 122, and the case there cited of Nesbit v. Brown, 1 Dev. Eq. R. 30. This equitable doctrine is not opposed by the case of Randolph v. Kinney, 3 Rand. 394. In that case there was not an unbroken chain of covenants of the same kind. The only covenant which appears to have been contained in the deed to Randolph, who asserted the equity, was a covenant for quiet enjoyment. And that was never of any effect, because the land in controversy never came to the possession of Randolph, but remained in the adversary possession of another, in whose possession it was when conveyed to Randolph. There was then no starting point; no foundation for the equity to rest upon.
But it is said that only a portion, though much the greater portion, of the land conveyed by John Hoomes the younger to Apperson, was conveyed by the latter to Dickinson; and one of the learned counsel for the appellees relies on a defence, which he admits to be technical, and for which no authority is to be found except in a work of Preston, viz: that a covenant cannot be apportioned. That writer, who, as the counsel properly says, is a very great authority, does certainly say that " when the property is subdivided by sales it seems to follow from a maxim in law that the purchasers lose the benefit of the former covenants, on the ground that the remedy cannot be apportioned; or, in more correct terms, the covenantor cannot be subjected to several actions. Thus when a man sells two farms to A and covenants with him, his heirs and assigns, and one of these farms is sold by A to B, B can never sue on this covenant, since it would subject the covenantor to several actions." 3 Preston Abstr. 56, 58; 2 Lomax 263, 4, note. But as one of the learned counsel for the appellants properly remarked, Preston seems to contradict this position in another part of his work, when he says that covenants which run with the land are not extinguished by apportionment of the land into parcels among several purchasers and owners. The position is not only unsupported by any other authority than that of Preston, but is opposed by an array of authority no less imposing than his. Sugden, after quoting the observation of Preston, says: " The better opinion however seems to be, that an alienee of one of the estates could maintain covenant against the covenantor where the covenants run with the land." It does not seem that any injustice would arise by suffering several covenants to lie, although it might expose the covenantor to inconvenience; whereas the denial of the right to each assignee might lead to positive injustice, or, if not, to greater inconvenience on their part." 2 Sug. on Vend. 743, pl. 91, 92. See also Kane v. Sanger, 14 John. R. 89, and authorities cited; Van Horne v. Crain, 1 Paige's R. 455; Astor v. Miller, 2 Paige's R. 68. It is true, as a general principle of law, that covenants are not apportionable; and so also is it true, as a general principle of law, that covenants are not assignable. But as covenants which run with land are assignable, because the land itself is assignable, so also, it would seem that covenants which run with land are apportionable because the land itself is apportionable. A covenant running with land would be of very little value if it ceased to run with the land whenever the land was divided, whether by act of law or by the act of the owner. We know that covenants for the payment of rent are apportionable, both by act of law and by the acts of parties. 8 Bac. Abr., Rent. M. And for the same reason why may not other covenants be apportioned? The rule of law that covenants are not apportionable is founded on convenience. But injustice is a greater evil than inconvenience. And wherever justice, or even greater convenience, requires that a covenant should be apportioned, it would seem to be reasonable that the general rule should bend and admit of an exception.
3dly. I come now to the consideration of the question, " whether lands descended in Kentucky could be regarded as assets by descent in any proceeding in Virginia?"
" Freehold land of inheritance, descended to a person's heir at law is, by the common law, assets for the payment of the ancestor's debts by specialty, as by bond or covenant, in which his heirs are bound." Ram on Assets 214, 8 Law Library 144. The common law in this respect was the law of Virginia, when it embraced the territory which now constitutes the State of Kentucky. It has been the policy of all or nearly all the states of the Union to extend, and not to restrict, the liability of land for the payment of debts. While in our own state that policy has not progressed so rapidly as in some of the other, and especially in most of the western states, it has at length reached the point of subjecting an intestate's land to the payment of all his debts. In the absence therefore of all evidence on the subject it would be presumable, that in Kentucky land is liable for the payment of debts, at least to the extent to which it is liable at the common law; especially if that liability sought to be enforced by the bill should not be denied by the answer. But in this case it is proved affirmatively by John C. Herndon, a lawyer of that state, that by the law of that state, which existed in 1823 when Richard Hoomes died, and has ever since existed, freehold land of inheritance descending from an intestate " can be subjected to the payment of the intestate's debts either by proceedings in law or chancery." It is also proved by him that as early as 1798 an act was passed, which is still in force in that state, containing a provision similar to 1 Rev. Code, ch. 99, § 21, that " if the deed of the alienor doth mention that he and his heirs be bound to warranty, and if any heritage descend to the demandant of the side of the alienor, then he shall be bound for the value of the heritage that is to him descended" & c. This last provision having been the law of Virginia when Kentucky was organized as an independent state, the probability is that it never ceased for a moment to be the law of the latter state, and that the said act of 1798 was merely a continuation or re-enactment of an existing law. Without any proof of such re-enactment it would have been fair to presume that the provision continued to exist as a part of the Kentucky law. It is contended by one of the counsel for the appellees, that the Kentucky laws in question being statute laws, the evidence of Herndon is inadmissible; no foundation having been laid for its introduction as secondary evidence, by proof of inability to obtain copies of the statutes. The citation from Story's Conflict of Laws, § 637, 641, certainly gives support to the position that as a general rule a foreign statute law must be proved by an authentic copy if to be had. The Courts of some of the states, and the Supreme court of the United States, are of opinion, " that the connexion, intercourse and constitutional ties which bind together these several states, require some relaxation of the strictness of this rule," and " have accordingly held that a printed volume purporting on the face of it to contain the laws of a sister state is admissible as prima facie evidence, to prove the statute laws of that state." 1 Greenl. Ev. § 489, and cases cited in note 2, among which is the case of Taylor v. Bank of Alexandria, 5 Leigh 471. But I incline to think that the doctrine of primary and secondary evidence does not apply to the case, and that a foreign law, whether written or unwritten, may be proved by a person who is learned in that law, without laying any foundation for the introduction of secondary evidence. This is the principle of a late decision of the Court of Queen's Bench, cited by one of the counsel for the appellants from 55 Eng. C. L. R. 250, 267. As was said by one of the Judges in that case, " the general principle does not seem to apply to the case. What, in truth, is it that we ask the witness? Not to tell us what the written law states; but, generally, what the law is. The question is not as to the language of the written law: For when that language is before us we have no means by which we are to construe it." " How many errors might result if a foreign Court attempted to collect the law from the language of some of our statutes which declare instruments in particular cases to be null and void to all intents and purposes, while an English lawyer would state that they are good against the grantor, and that the Courts have so expounded the statutes! It is no answer to say that other evidence by word of mouth may be added for the purpose of giving the interpretation of the written law. I am merely shewing that our Courts require, not the actual written words of a foreign law, but the law itself; for which purpose a professional witness is required to expound it." But the evidence of Herndon not having been objected to in the Court below, (in which case authenticated copies of the statutes might have been exhibited,) it would seem to be too late to make the objection in this Court.
Whether therefore we look to the evidence of Herndon or not, I think it must be regarded as the law of Kentucky, that any land in that state which may have descended from Richard Hoomes to his heirs at law, is assets for the payment of what may be due upon his covenant of warranty in this case; and that if the land to which the covenant is annexed were situate in the State of Kentucky, the heirs of the covenantor, in an action brought by them to recover that land, would be barred for the value of the land to them descended.
But the land to which the covenant is annexed being situate, and the suit for its recovery by the heirs of the covenantor being brought, in Virginia; the question is, whether the land descended to them in Kentucky is assets, and whether they ought to be bound for the value of the said land descended to them, at least to the extent to which it has actually come to their hands.
I think this question should be answered in the affirmative. It is undoubtedly true that real estate, or immovable property, is exclusively subject to the laws of the government within whose territory it is situate; and that no writ of sequestration or execution, or any order, judgment or decree of a foreign Court, can be enforced against it. But I think it is no less true " that equity, as it acts primarily in personam, and not merely in rem, may, where a person against whom relief is sought is within the jurisdiction, make a decree upon the ground of a contract, or any equity subsisting between the parties respecting property situated out of the jurisdiction. In this very language the principle is stated by White and Tudor in their notes to leading equity cases, Law Library, May 1851, p. 319; and the authorities to which they and the American editors refer, seem fully to sustain the principle.
In the case of Massie v. Watts, 6 Cranch's R. 148, Marshall, Ch. J. reviews the principal cases, commencing with the celebrated case of Penn v. Lord Baltimore, 1 Ves. sr. 444; and concludes, " upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, that in a case of fraud, of trust, or of contract, the jurisdiction of a Court of chancery is sustainable wherever the person may be found, although lands not within the jurisdiction of that Court may be affected by the decree." " The circumstance," to use his language in another part of the case, " that a question of title may be involved in the enquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction." In the case of Mitchell v. Burch, 2 Paige's R. 615, the Chancellor says: " Although the property of a defendant is beyond the reach of the Court, so that it can neither be sequestered or taken in execution, the Court does not lose its jurisdiction in relation to that property, provided the person of the defendant is within the jurisdiction. By the ordinary course of proceeding, the defendant may be compelled either to bring the property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the Court; or to execute such a conveyance or transfer thereof as will be sufficient to vest the legal title, as well as the possession of the property, according to the lex loci rei sitæ . See also Mead v. Merrit, Id. 404. These principles have been recognized in Virginia, so far as we have had any adjudications on the subject. In the case of Farley v. Shippen, Wythe's R. 135, Chancellor Wythe decreed that the defendants who resided in Virginia, were trustees for the benefit of the plaintiffs of certain lands in North Carolina, and should convey the same to them. " If," said the Chancellor in that case, " an act performed by a party in Virginia, who ought to perform it, will be effectual to convey land in North Carolina, why may not a Court of equity in Virginia decree that party, regularly brought before that tribunal to perform the act? Some of the defendant's counsel supposed that such a decree would be deemed by our brethren of North Carolina an invasion of their sovereignty. To this shall be allowed the force of a good objection, if those who urge it will prove that the sovereignty of that state will be violated by the Virginia Court of equity decreeing a party within its jurisdiction to perform an act there, which act voluntarily performed any where, would not be such a violation. The defendant's counsel objected also, that the Court cannot, in execution of its decree, award a writ of sequestration against the lands in North Carolina, because its precepts are not authorities there. But this, which is admitted to be true, doth not prove that the Court cannot make the decree; because, although it cannot award such a writ of sequestration, it hath power confessedly to award an attachment for contempt in refusing to perform the decree." In Guerrant v. Fowler, 1 Hen. & Munf. 5, Chancellor Taylor approved the principles of the case of Farley v. Shippen, and decreed accordingly.
Immovable property being subject to the laws of the government within whose territory it is situate, the question whether and to what extent it is liable to the claims of a plaintiff must of course be determined according to those laws. Therefore, where the suit is brought in a country different from that in which the property is situate, the Court in giving relief, must to that extent administer foreign law. This may be an inconvenience, but it is no objection to the jurisdiction of the Court, and is preferable to that failure of justice which would arise from a refusal to interfere in such cases. Courts, in the administration of justice, are in many cases, bound to execute foreign laws. Where a suit is brought in one country on a contract made in another, the lex loci contractus governs the case. Where a citizen of one country dies leaving personal property in another, the lex domicilii governs the succession and distribution of the property. In the latter case the domiciliary administrator cannot recover property situated out of the limits of the jurisdiction from which he derived his appointment. An auxiliary administrator must be appointed by the jurisdiction in whose limits the property is situate; and he is responsible for the property, not to the domiciliary administrator, but directly to creditors, legatees and distributees. In a suit brought by legatees or distributees to enforce that responsibility, the lex domicilii must be ascertained and administered by the Court. Harvey v. Richards, 1 Mason's R. 381, was such a suit, and in it the law of Bengal, which was the place of the domicil, was ascertained and administered.
An heir who has assets by descent, which are liable by the lex loci, to the payment of the ancestor's debts, may be considered to the extent of the assets, as a debtor by contract to the creditors, and also as a trustee of the subject for their benefit. His case therefore, as well upon the ground of trust as of contract, seems to be embraced by the principle as laid down by the Chief Justice in Massie v. Watts, " that in a case of fraud, of trust, or of contract, the jurisdiction of a Court of chancery is sustainable wherever the person may be found, although lands not within the jurisdiction of that Court, may be affected by the decree." It is true the creditors have no lien upon the land descended; and a bona fide purchaser of it from the heir is entitled to hold it against the claims of creditors. But the heir was always bound in equity, and for a long time has been bound at law, to the extent of the purchase money. An heir in regard to the assets descended is as much a debtor by contract and a trustee for the benefit of the creditors whose claims bind the heirs, as an executor is in regard to the assets in his hands. In the case of Tunstall v. Pollard, 11 Leigh 1, it was decided by this Court that an executor having taken probat of the testator's will and letters testamentary in England, and collected the assets of the testator's estate there, and brought them with him to Virginia, but having never qualified as executor in Virginia, is liable to be sued by the legatees in the Court of chancery of Virginia for an account of his administration, and for the legacies that remain unpaid. There would seem to be less difficulty in maintaining a suit against an heir in respect of foreign assets, than a suit against a foreign executor, even in respect of assets brought with him to the country in which the suit is brought. An heir is a quasi personal debtor, liable to be sued in the debet and detinet. His obligation attaches to his person and follows him wherever he goes. The only difference between him and an ordinary debtor, is the extent of his responsibility, which is limited not only by the nominal amount of the contract, but also by the value of the assets descended. He holds the assets in his own right, and as his own property. An executor on the other hand, acts under a commission, and is accountable to the jurisdiction from which he received it. It was contended with very great force in the case of Tunstall v. Pollard, that the executor is accountable exclusively to the jurisdiction from which he receives his commission. But the Court overruled the objection. President Tucker in delivering an opinion in which a majority of the Court concurred, after admitting that the administration of the assets must be governed by foreign law, and repelling the objection arising from the difficulty of ascertaining that law, remarks: " Whatever of difficulty or inconvenience may be fancied to exist in the execution of this duty, it weighs little in the balance in comparison with the burden which would be imposed upon creditors and distributees by refusing cognizance of their cases here, though the person and the property are both in our power, and sending them to sue in a foreign country from which the executor has absconded with the whole of the assets in his pocket. How shall they sue him there when he is not within the jurisdiction? How shall they reach the assets there when he has eloigned them?" p. 29. " Upon the whole then it appears that in subjecting the executor to suit, who has brought the assets into this jurisdiction, no mischief will arise; while the contrary doctrine will protect an executor (who quits the country where he administered and comes over to this country with the assets,) from all claim whatsoever. If he cannot be sued here he can be sued nowhere; since the foreign Court can have no longer power over him when his person and his effects are both beyond its reach."
An heir cannot be sued at law in respect of foreign assets, because the writ of extendi facias, which is the only execution against the heir on a judgment at law, cannot be enforced extra territorium. But Courts of law and equity have concurrent jurisdiction of suits against heirs. And though some of the modern means, whereby adecree of a Court of equity may be enforced, can have no operation extra territorium, yet the ancient process of attachment may still be resorted to for the purpose of enforcing the performance of a decree; and will generally be found effectual whenever the person who is to perform the decree is within the jurisdiction of the Court. The Court will give to the suitor all the redress within its power, and will not be deterred from doing so by the consideration that it cannot act in rem as well as in personam. I think therefore a suit in equity may be maintained against the heir whenever his person is within the jurisdiction of the Court. Ordinarily, the Court in whose jurisdiction the defendant resides would be the most convenient Court for him; for, in the language of Chancellor Wythe in Farley v. Shippen, " a case can rarely if ever occur, the discussion of which can be so convenient to the defendant in any other, as in his own country." But cases may sometimes occur in which, all things considered, it may be more convenient to turn over the parties to a foreign jurisdiction. The ancestor may reside and die abroad leaving all his family and estate in the place of his domicil. One of his heirs may remove to this country or be casually here, and be sued here for a debt binding the heirs. In such a case justice as well as convenience would require that the suit should be brought where most of the heirs reside, where the executor resides, where the property is situate, and where therefore the accounts can more conveniently be settled, the law which governs the case be better ascertained, and the decree be more effectually enforced. " It may be admitted," says Story, Justice, in the case of Harvey v. Richards, 1 Mason's R. 381, 409, " that a Court of equity ought not to be the instrument of injustice, and that if, in the given case, such would be the effect of its interposition, it ought to withhold its arm. This however would be an objection, not to the general authority, but to the exercise of it under particular circumstances." Under such circumstances the Court in the exercise of a sound discretion should dismiss a creditor's bill against the heir without prejudice to any suit he may bring in the place of the domicil. But on the other hand cases may occur in which justice as well as convenience would require the suit to be brought in the country in which the heirs reside; though the land sought to be affected is situated in another country. Nay, cases may occur in which there would be an absolute failure of justice if the suit were not so brought. Suppose the ancestor lives and dies in Virginia leaving all his heirs here, and all his creditors here, and all his estate here except some wild lands in another state, and suppose the heirs sell these lands, receive the proceeds and bring them to Virginia, could not a suit of equity be maintained in Virginia by the creditors against the heirs? In the language of Story, J. in the case of Harvey v. Richards, " The property is here, the parties are here, and the rule of distribution is fixed. What reason then exists, why the Court should not proceed to decree according to the rights of the parties? Why should it send our own citizens to a foreign tribunal to seek that justice which it is in its own power to administer without injustice to any other person." Indeed it may be said in language similar to that of Tucker, President, in Tunstall v. Pollard, " If the heirs in the case supposed cannot be sued here, they can be sued nowhere; since the foreign Court can have no longer power over them when their persons and effects are both beyond its reach." But suppose further that the heirs, having sold the lands and brought the proceeds here, bring a suit in equity in this state to recover land conveyed by their ancestor with covenant of warranty binding the heirs, could not the defendant in that suit defend himself by averring and shewing that the value of the land was already in the hands of the heirs in the form of money arising from the sale of lands in another state descended to them from the same ancestor and liable by the laws of that state for the payment of the ancestor's debts? It may be said that the cases supposed are extreme cases. And yet they are very much like the case under consideration, if lands in Kentucky in fact descended from Richard Hoomes to his heirs at law; a question which will be presently considered. To say that because in some cases it might be inconvenient to exercise such a jurisdiction, it should therefore be exercised in no case whatever, would be to say that positive and certain injustice should be permitted to be done for the purpose of avoiding a possible inconvenience. The question whether the Court will give relief in any given case, is, in the language of Story, J. in Harvey v. Richards, " a matter, not of jurisdiction but of judicial discretion, depending upon the particular circumstances of each case."
The exercise of such a jurisdiction would be no invasion of the sovereignty in whose jurisdiction the property is situate, and no violation or obstruction of its laws. On the contrary it would rather tend to execute and enforce those laws. Its object is to enforce a contract, or trust, or liability, created, or recognized, or permitted by those laws, against persons who are out of the limits of the jurisdiction where the property is situate. It supplies a remedy when otherwise there might be none, and is auxiliary, instead of adversary, to the foreign jurisdiction. No sovereignty would object to the exercise of such a jurisdiction. The citizens of that sovereignty might be deeply interested in its exercise. Suppose the ancestor dies in another state leaving his land, his heir and his creditors there; and that the heir sells the land, receives the money and comes to our state to reside. Would our Court of equity deny relief to the creditors in such a case? Would not national comity as well as justice require it to give such relief? And yet the motives and reasons for giving relief would be much stronger in a case in which the ancestor, heir and creditors all resided in our own country. If the sovereignty of the situs would not, as it could not, object to the exercise of jurisdiction by our Court in the former case, it certainly would not in the latter.
Nor would the exercise of such a jurisdiction be apt to produce any conflict of authority between the tribunals of different states; or to expose the defendant to a multiplicity of suits, or a double liability. As was well said by one of the counsel for the appellant, the heir may protect himself by his pleas, whether the land lies in Virginia or elsewhere; and where the land lies elsewhere a Court of equity will take especial care that he be not subjected to a double charge. That Court is armed with power, and it is its duty, to direct all proper accounts and enquiries, and use all precautions which may be necessary for the attainment of complete justice to all the parties. It professes in such a case, in good faith to administer the law of the situs. And the sovereignty of the situs will give full faith and credit to its judgments. In the case of Tunstall v. Pollard, the same objection of conflict of jurisdiction was made. But it was answered by the President in this way. " It is said indeed that peradventure there might be a conflict between the decisions of the foreign Court and ours, and that between the two the executor might suffer. I think not. While this Court would be bound in its decision to conform to the law of the forum which granted administration, the foreign Court on its part would consider the party protected for what he is compelled to do by us. No Court it must be presumed, could ever charge an executor with a devastavit, because he has paid a debt decreed in invitum, by a foreign tribunal, although the domestic forum may consider the decree erroneous." He then proceeds to shew by authority that this is the established principle of public law as recognized both in England and the United States. An heir who pays the debt of the ancestor binding the heir, is protected to the extent of such payment, and may plead it for his protection in any suit brought against him by another creditor of the ancestor. This he may do, even though the payment be voluntary; and, a fortiori, he may do it if the payment be made by compulsion. If the heir reside here the suit must be brought here, in which case, of course, our Courts would give the heir the benefit of his payment. But if the suit could be brought in a Court of the situs, such Court would give at least as much effect to a payment by compulsion as to a voluntary payment, and this would be sufficient for the protection of the heir.
There is then no danger in any case of any injury to the heir arising from a conflict of jurisdiction. But if there were any danger in any case, there can certainly be none in this, in which the ancestor and all the heirs always resided in Virginia; in which the ancestor has been dead nearly thirty years; and in which it is not pretended in the answer of the heirs, that any suit has ever been brought in Kentucky to subject the assets descended from the ancestor to the payment of his debts; or that any creditor of the ancestor ever existed in that state. If it be said that there is a possibility of the existence of such a creditor, or the institution of such a suit, it is so bare and remote as not to be a feather in the scale against that positive injustice which would be inflicted on the appellant by compelling him to surrender land warranted to him by the ancestor, to heirs who are in possession of assets by descent from the same ancestor; and to turn him over to the possibility of obtaining relief in Kentucky, where none of the heirs reside, and where now there may be no remaining assets.
The comity which authorizes, if not the necessity which requires, the exercise of such a jurisdiction in countries generally, applies with greatly increased force to the United States as among themselves. Their close political union; their local proximity to each other, and the frequent social and commercial intercourse of their inhabitants, render it absolutely necessary that the principles of comity among themselves should be carried to the fullest extent; while the similarity of their institutions and laws render it comparatively convenient and easy to enforce in one state a contract or trust governed by the laws of another. It may be said that, in some of the states, and especially of the new states, land has been made assets for the payment of all the debts of a decedent, and is subject to sale for that purpose by his personal representative, though the descent is not broken. This, so far from diminishing, increases the propriety of affording equitable relief in other states, where the heir may be found by the creditors with the proceeds of the land in his pocket. The giving of such relief may involve the necessity of taking an account of the assets real and personal, and of the administration thereof by the foreign representative: but it no more involves that necessity where the real estate is placed on the footing of personal assets by the local law, than where it is liable as at common law: for the personal, being the primary fund for the payment of debts at common law, must be exhausted before the real estate can be taken for that purpose: so that an account of the personal estate must generally be taken before the common law liability of the real estate can be enforced. Indeed, where the real estate is placed entirely on the footing of personal assets, and subjected to primary liability, the necessity for the settlement of an account of the personal estate before the real can be taken, would seem to be thereby obviated. But the necessity for such a settlement where it exists, is no objection to the jurisdiction, but addresses itself entirely to the judicial discretion of the Court. It may be a reason for " declining to exercise the jurisdiction in particular cases," but is no reason " against the existence of the jurisdiction itself." 1 Mason's R. 414 and 15. As was said by the learned Judge in that case, in speaking of a kindred subject, whether the Court will give relief or not, " must depend on the circumstances of each case; " and it is incumbent on those who resist the giving of relief, " to establish in the given case that it may work injustice or public mischief." Id. 430. But, reverting to the policy which has prevailed in most if not all of the states to increase and facilitate the liability of real estate for the payment of debts, it would be strange indeed if it should be a fruit of that policy to discharge the heir from all liability for the ancestor's debt, in a case in which the plainest equity requires that he should be made liable, and in which he might be made liable without the least injustice or the slightest inconvenience to any body in the world. I imagine that in no state of the Union is the estate of a decedent discharged from liability, merely because it has passed from the hands of the personal representative and reached the hands of heirs or distributees. I imagine that in every state, as at common law, the claims of creditors attach to the estate as a trust subject, and (though from necessity bona fide purchasers must acquire a good title,) follow it into the hands of heirs and distributees, and may be enforced wherever their persons are to be found, and the doctrines of the English chancery prevail.
Reason and authority are alike in favour of the jurisdiction of a Court of equity in such cases. While the general principle that that Court has jurisdiction over the person, wherever it may be found, to enforce a contract or a trust, though land in a foreign country may be affected thereby, is sustained by many cases, and is now a well settled doctrine of equity; and while the case of an heir having in his hands foreign assets by descent, whether in the form of land or money, which by the contract of the ancestor and the law of the situs, are bound for the debts of the ancestor, is clearly within the reason of those cases and of that doctrine. I have yet seen no case ancient or modern, in which it was decided that a Court of equity, having jurisdiction over the person of the heir, had no power to enforce such a liability. In the earlier ages of English equity law, before it was well defined and established on the broad basis of justice on which it now stands, there was a struggle between the common law lawyers and the equity lawyers, not on the particular question of the liability of an heir for foreign assets by descent; but on the general question of the jurisdiction of a Court of equity in personam, though the decree might indirectly affect land situated in a foreign country. The case of Arglasse v. Muschamp, 1 Vern. R. 75, decided in 1682, was a suit in equity to be relieved against a fraudulent conveyance of lands in Ireland. The defendant pleaded to the jurisdiction. The Lord Chancellor after saying, " This is surely only a jest put upon the jurisdiction of this Court by the common lawyers; for when you go about to bind the lands, and grant a sequestration to execute a decree, then they readily tell you that the authority of this Court is only to regulate a man's conscience, and ought not to affect the estate, but that this Court must agere in personam only; and when, as in this case, you prosecute the person for a fraud, they tell you, you must not intermeddle here, because the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local; and so would wholly elude the jurisdiction of this Court; " overruled the plea, and ordered the defendant to pay costs " for endeavouring to oust the Court of its jurisdiction." The case of the Earl of Kildare v. Sir Morrice Eustace, Id. 419, cited by Mr. Barton, was a suit in equity to enforce a trust of lands in Ireland. Sir John Holt, the counsel for the plaintiff, maintained the jurisdiction of the Court. The defendant's counsel " in a manner waived," and thus conceded, " the preliminary point" of jurisdiction, " and would not enter into the debate whether the Court might not decree the trust of lands in Ireland, the trustee being in England." But they insisted that it was certainly a matter discretionary in the Court, whether they would do it or not; and that as this case was circumstanced, they apprehended the Court would not interpose. And among the reasons assigned for not interposing in the case, were the following: " 1st. That in this case there had been no less than two judgments in the Courts of law in Ireland, and no less than three bills in equity; " and " 2dly. That Sir Morrice Eustice the trustee, did not live in England, but came here occasionally upon other business; and that it would be unreasonable to keep him from his own country and from all his other concerns, to attend this suit." But the Court, consisting of the Lord Chancellor and the Judges, overruled the objection, and decided not only that the Court had jurisdiction of the case, but that it was a proper one for the exercise of its judicial discretion. It is true, as stated by Mr. Barton, that Sir John Holt, in arguing the case, said " it was resolved in Evans & Ascough's Case, Latch, fol. 234, and Dowdale's Case, in 6 Coke's R. 348, that lands in Ireland shall be assets to satisfy a bond debt here, but otherwise of lands in Scotland; " and it is also true that in 3 Vin. Abr. 141, also cited by Mr. Barton, the following passage appears: " Lands in Ireland are assets to satisfy a bond debt in England, but it is otherwise of lands in Scotland; " to which passage is appended as the only authority on which it rests a reference to the argument of Sir John Holt, in 1 Vern. 419, " citing it as resolved in Evans & Ascough's, Latch 233, and Dowdale's Case, 6 Coke's R. 348." The only authorities for the passage then, are the cases cited from Latch and Coke. These were both common law cases--the former being an action of trespass in the Court of King's Bench, and the latter of debt in the Court of common pleas: and nothing which could have been said in them, however plainly expressed, would have been regarded as authority on the question of the jurisdiction of a Court of chancery in personam. The case in Latch was decided in the reign of James the first; and the only edition of the report I have seen, is the original one by Walpole, written in Norman French, which I do not understand. I cannot therefore undertake to say, what was said in the case in relation to assets by descent, or in what connection it was said. The case in 6 Coke 348, Dowdale's Case, was decided in the same reign. But nothing was said in it about assets by descent in a foreign country. It was an action of debt against an executor, who plead plene administravit. The jury found that there were assets, but that they were beyond sea or in Ireland. It was resolved, " that the jurors have found the substance of the issue, that is to say, assets; and the finding that they are beyond sea is surplusage. For if the executors have goods of the testator's in any part of the world, they shall be charged in respect of them, for many merchants and other men, who have stocks and goods to a great value beyond sea, are indebted here in England; and God forbid that those goods should not be liable to their debts, for otherwise there would be a great defect in the law." In Dowdale's Case the question was as to the difference between local and transitory actions, and whether a jury could find transitory things in another country. It was necessary for the parties in pleading to name a certain place for a venue, and the question in the case was whether the evidence of the parties and finding of the jury must be literally confined to the place named in the issue, or might be applied to any other place. It was in reference to that question that it was said by counsel in argument, to have been decided in an action of debt against an heir on the bond of his ancestor in which the defendant pleaded " nothing by descent," and the plaintiff averred assets by descent in London, and gave in assets in Cornwall, that the jury could not find this local matter in a foreign country. But the Court, in answer to this argument, said: " God forbid but that the jury may find assets by descent in any other county within England; for the law is that the plaintiff in such case shall have in execution all the lands which the heir has, and perhaps he has lands in divers counties; and therefore, although one place be named for necessity, yet the jury may find all that which by law shall be chargeable in such case, in what town or county soever it lies."
The distinction between Ireland and Scotland referred to arguendo, by Sir John Holt, was founded on the idea that seems at that time to have existed, that Ireland being a " conquered kingdom" the judgments and decrees of the English Superior courts could be enforced by them in that country. And therefore Lord Holt said, " That Ireland hath its Courts of its own by grant from the King; but not exclusive of the King's Courts here, for Ireland is a conquered kingdom; and a decree of this Court may as well bind land in Ireland, as by every day's practice it doth lands that lie in foreign plantations: and for precedents cited the case of a scire facias brought in the chancery here to repeal a patent of lands in Ireland. If a man that is beneficed here is made a bishop in Ireland, that comes within the statute of H. 8, against pluralities, and shall make void his living here in Ireland; and it was resolved in Evans & Ascough's Case, Latch, fol. 233, and Dowdale's Case, 6 Coke's R. 348, that lands in Ireland shall be assets to satisfy a bond debt here, but otherwise of lands in Scotland." And in the case of Sir John Fryer v. Bernard, 2 P. Wms. 261, referred to in Raithby's note to 1 Vernon 76, it seems that a sequestration was awarded by the English Court of chancery against defendant's real and personal estate in Ireland, a sequestration having been first taken out in England and returned nulla bona.
Now it is not pretended by any that the Courts of one state can enforce their judgments in another; and therefore in a suit at law against an heir, land descended to him in another state cannot be regarded as assets by descent, because the writ of extendi facias cannot be enforced against it. But the question in this case is not whether land descended in another state can be regarded as " assets by descent," technically speaking, here, for what is to be regarded as " assets by descent," in a technical sense, must be only such as are made so by our own law, and as are within the reach of our own Courts. The question is whether a trust created by or under the laws of another state can be enforced against a trustee residing here? And I think it clearly can. It matters not whether the trust be created by the act of the parties, or by the local law. In either case the lex loci is administered. Nor does it matter that the trust relates to an immovable subject in another state, provided the decree does not invade the jurisdiction or the sovereignty of that state. And there can be no invasion of that jurisdiction or sovereignty where we only require our own resident citizens to do that which if voluntarily done would be valid in that state. A fortiori, there can be none where the subject has been sold and the money is in their hands.
As to the statutes of 5 George II, ch. 7, and 9 George IV, ch. 33, mentioned in Ram on Assets, 8 Law Lib. 158, referred to by Mr. Morson; they were not passed because they were considered necessary to enable an English Court of chancery to enforce, against a trustee residing in its jurisdiction, the execution of a trust concerning foreign land; nor for the purpose of giving that Court any jurisdiction in regard to such land descending to a person residing in its limits. Those statutes merely make real estate in certain colonies and provinces of England assets by descent for the payment of debts generally; instead of certain specialty debts only as at common law; and provide remedies against those assets, to be had in the colonial and provincial Courts, and not the Courts of England. This was a mere exercise of legislative power over a part of the British dominions, and I do not see how it can affect the question under consideration.
I will now proceed to consider the last question arising in the case; and that is,
4thly. Whether, in fact, any lands in Kentucky descended from Richard Hoomes to his children; and if they did, whether they were not forfeited for non-payment of taxes; and whether such of them as were held by the children were held by them as purchasers from the State of Kentucky, and not as heirs of their father?
When John Hoomes the elder died in 1805, he appears to have been entitled to 18 or 20,000 acres of land in Kentucky, which, as a part of the residuum of his estate, he charged by his will with the payment of his debts; and the surplus of which he devised to his five children, John, William, Richard, Armistead and Sophia, " to hold the same in fee simple subject to the condition or contingency to which their other property was subject." So that to one undivided fifth of these lands, subject to the charge aforesaid, Richard Hoomes became entitled as devisee of John Hoomes the elder. These lands, or the greater part of them, seem to have remained undisposed of at the death of Richard Hoomes in 1823; eighteen years after the death of his father John Hoomes. The appellant contends that the portion of these lands to which Richard was entitled at the time of his death descended to his children, and became assets by descent liable for his debts by the law of Kentucky. To this claim several objections are made by the appellees.
1st. They insist that Richard had never any actual seisin of the Kentucky lands. That by the common law he could not be the stock of the descent of any portion of the said lands to his children, who must claim, if at all, under the ancestor last actually seised, according to the maxim, non jus, sed seisina facit stipitem: and that this rule of the common law, so far as appears from the record, is still the law of Kentucky.
I do not think this objection is well founded, for several reasons. 1st. I think, as was said by the Supreme court of the United States, in the case of Green v. Liter, 8 Cranch's R. 229, " that even if, at common law, an actual pedis positio, followed up by an actual perception of the profits, were necessary to maintain a writ of right, (or, in this case, to constitute a stock of descent,) which we do not admit, the doctrine would be inapplicable to the waste and vacant lands of our country, (such as were the lands in Kentucky owned by John Hoomes the elder at his death.) The common law itself in many cases dispenses with such a rule; and the reason of the rule itself ceases when applied to a mere wilderness." And I therefore think that if John Hoomes the elder was seised of these lands at the time of his death, and they were not in the adverse possession of others at the time of Richard Hoomes's death, he was sufficiently seised of his portion of them to make him a stock of descent on common law principles as modified by the condition of the country. 2dly. If John Hoomes the elder was seised of them at the time of his death, which is not denied, he had a right to devise them even according to the English statute of wills, and his devisees became by the devise seised in deed without any actual pedis positio, or taking of the esplees. The maxim seisina facit stipitem is inapplicable to such a case. The children of Richard Hoomes must take his portion of the lands as his heirs, or not at all. They cannot take it as heirs at law of John Hoomes the elder, because it was effectually devised by him to Richard. The devise broke the descent. Suppose the devise had been to a stranger instead of a son, the heirs of the stranger could not claim under the testator as a stock of descent, and could only claim by inheritance from their father. The law having authorized the devise, the estate thereby conferred was as perfect as if it had been conferred by the common law feoffment with livery of seisin. The will operates like a deed of bargain and sale or other conveyance under the statute of uses, by virtue of which the bargainee has a complete seisin in deed, without actual entry or livery of seisin. 3dly. It is proved by Herndon, and would have been presumable if not proved, for reasons which I have before stated, that the statute of descents of Kentucky is similar to the statute of descents of Virginia, in declaring " that henceforth when any person having a title to any real estate of inheritance, shall die intestate as to such estate, it shall descend," & c. I think that " the common law rule, seisina facit stipitem, may now therefore be regarded as abrogated in" Kentucky as well as " in Virginia; " and that there as well as here, " having title to any real estate, is alone sufficient to make the intestate the root of the inheritance." 1 Lomax's Dig. 594, § 2.
2dly. They insist that none of these lands have come to their hands, except 635 acres, which they contend was afterwards forfeited for non-payment of taxes and sold and conveyed by the agent of the state to Richard H. Hoomes, one of the heirs of Richard Hoomes, who thereby acquired " a title in the said lands by purchase from the state, and not by descent from his ancestor."
The answer of the appellees, the heirs of Richard Hoomes, to the supplemental bill of the appellant, expressly admits, that on the 6th of May 1833, 2726 acres of these Kentucky lands were divided among the parties entitled thereto by commissioners appointed for the purpose; and that 635 acres thereof were allotted to the said heirs of Richard Hoomes, of which 75 acres were apportioned to Williamson Tally as compensation for his services in procuring the same to be divided and allotted. They further say that from the best information they have been able to obtain, the land allotted to them did not exceed the value of 1 dollar 25 cents per acre; and that they did not realize from their sale a greater sum. They further say they have good reason to believe that other lands in the State of Kentucky were in the seisin and possession of their grandfather John Hoomes, but such have never come to their possession.
Now here is a solemn admission, that 635, minus 75, acres of these lands have not only come to their hands, but been by them converted into money. To be sure, they " insist that these lands were derived by them under the will of their grandfather, and were not inherited from their father." But this is a question of law about which I think, and have endeavoured to shew, they are mistaken; at least as to so much of the land as their father was entitled to at the time of his death; for they were themselves entitled to a portion of it as contingent devisees of their grandfather, according to the decision of this Court in the case reported in 1 Grattan.
How is the force of this admission to be avoided, if I am right on the question of law aforesaid?
After the answer had been written and signed, an addition was made thereto to the following effect: " Your respondents beg leave further to state to your honour, a fact omitted to be stated in the body of their answer; that is to say, that on the day of 1842, a certain tract of land containing 2086 acres, and situated in the county of Anderson and State of Kentucky, and entered for taxation in the name of John Hoomes, was struck off to the State of Kentucky for the non-payment of the tax due thereon; which said land was afterwards, to wit, on the 21st of May 1845, sold and conveyed by John Draffin, agent for the commonwealth, to your respondent Richard H. Hoomes, by the name of Richard Hoomes, for the sum of 80 dollars 71 cents, by reason whereof the title to the said land became vested in him as purchaser from the State of Kentucky. Your respondents believe, and therefore aver and charge, that the said 2086 acres are the same lands, or parcel of the same lands, mentioned in the report of commissioners McBrayer and Herndon mentioned in this answer; all which will more fully and at large appear by reference to an attested copy of the said report, and a like copy of the said deed filed with this answer and prayed to be taken as part thereof."
The Circuit court was of opinion, and the appellees' counsel contend, that the 2086 acres above mentioned were in fact, as believed by the said respondents, to be parcel of the 2726 acres which were divided as aforesaid-- while, on the other hand, the counsel for the appellant contend that they are different lands. The respondents were not themselves certain that they are the same lands, but only believed so; and on that account, as well as on account of the doubt in which the evidence leaves the question, it would have been proper, I think, to have referred it to a commissioner, even if the right of the appellant to relief had depended upon it.
But does the right of the appellant to relief depend upon the question whether they are the same or different lands. Suppose they are the same lands; what effect can that fact have on the rights of the parties? None, I conceive; unless it be to make the land which was allotted to the heirs of Richard Hoomes as aforesaid, chargeable with a due proportion of the 80 dollars and 71 cents, paid by Richard H. Hoomes in discharge of the arrears of tax due upon the 2086 acres sold and conveyed by the agent of the State of Kentucky for the non-payment of the tax due thereon as aforesaid. The 2726 acres of land aforesaid had come to the hands of the parties, and been divided. Arrears of taxes are suffered to accrue thereon; and in 1842, nine years after the division, they are struck off to the state for non-payment of the taxes. In 1845, twelve years after the division, they are sold and conveyed by the agent of the state, for the " amount of tax, interest and charges due thereon, to Richard H. Hoomes one of the heirs of Richard Hoomes. I am now supposing that they are in fact the same lands. Can these heirs now say that their responsibility for these lands as assets by descent was discharged by this forfeiture and sale, and conveyance to one of them? Had that one any right to redeem these lands from forfeiture, or purchase them for his own benefit, in exclusion of his coparceners? If he had any such right, did he do it? Is there any pretension that they or their assigns have surrendered the land to him; or accounted to him for the proceeds of sale? Or paid to him anything more than their aliquot portions of the said sum of 80 dollars and 71 cents, if even they have paid that? The probability, from the pleadings and the evidence, is that Richard H. Hoomes went out to Kentucky to look after these lands as agent for the heirs of his father or grandfather; and finding that 2086 acres of land standing on the tax book in the name of his grandfather had been struck off to the state, he redeemed or purchased it from the agent of the state by paying the amount of tax & c. due thereon. He and his principals and co-heirs probably doubted whether it was the same land or not, which had been divided between them. But, whether the same land or not, it was prudent to redeem it, and obtain a conveyance from the state. For if it was the same land, their title to what they had already obtained would be thus confirmed. And if it was different land, they would thus obtain so much more. Whether it was the same or different land, seems to have been regarded by the appellees as a question of little importance; for, in the preparation of the body of their answer, they overlooked it altogether, and acknowledged themselves unconditionally to have received 635, minus 75, acres of the land.
Without pursuing this examination any further, I am very decidedly of opinion that the Court below should not have dismissed the appellant's bill for want of proof of assets descended to the appellees from their father in Kentucky; but that, it appearing from the evidence that 18 or 20,000 thousand acres of land in that state actually belonged to John Hoomes the elder at the time of his death; that though much the larger portion of it appears to have been forfeited for non-payment of taxes, yet these taxes all accrued, not only since the death of John Hoomes the elder in 1805, but since the death of Richard Hoomes in 1823; that the heirs of John Hoomes the elder and of Richard Hoomes, have by their agents from time to time looked after these lands, and surveyed, divided and made sales of portions of them; it should have been referred to a commissioner of the Court to enquire, ascertain and report what lands in Kentucky descended from Richard Hoomes to his heirs at law, and came to their possession; and the value and disposition which has been made thereof; and how much has been or is to be, and when, received by them for the said lands, or such part thereof as may have been sold by them, or for the rents and profits of any of the said lands; and what expenses have been necessarily incurred by them in looking after, obtaining possession of, dividing and selling the same and collecting the proceeds of sale; and any other facts which, in the opinion of the Court below, might have been necessary to shew what benefit the heirs of Richard Hoomes have derived from his land in Kentucky. To the extent of that benefit, I think they are, in equity, bound to indemnify the appellant against the recovery from him of that portion of the land warranted by their father, to which this Court has decided them to be entitled as purchasers under the will of their grandfather, and of the rents and profits thereof. If the amount of that benefit is equal to, or greater than, the value of the said portion, and its rents and profits; then the said recovery should be altogether barred and enjoined. But if the amount of that benefit is less than that value, the portion of the warranted land to which the appellees are entitled should be subject to a charge for the said amount, and if the same be not paid in a reasonable time, should be sold for its payment.
Under the statute of 1798 of Kentucky, which we have seen is similar to 1 Rev. Code, ch. 99, § 21, if the warranted land were situate, and the suit to recover it were pending, in that state, the heirs would be bound for the value of the lands to them descended. So that if at the death of the ancestor the lands descended were of greater value than the land warranted, the title of the warrantee and his assigns would then be good against the heirs of the warrantor, and could not be defeated by the forfeiture of the land descended for nonpayment of taxes thereafter accruing, nor by any disparity that might thereafter arise between the relative value of the land descended and the land warranted. It was contended by Mr. Morson that heirs are not bound to pay taxes for the benefit of creditors, and that if by non-payment of taxes the descended land is forfeited the heirs will not thereby become liable to creditors for the value of the land. This may be so, as a general rule at least. But where there are no unsatisfied creditors of the ancestor except the warrantee; and he becomes a creditor by a breach of the warranty occasioned by the recovery of the land from him by the heirs, I think the period of the ancestor's death is that at which the rights of the parties become fixed, and the relative values of the lands descended and warranted are to be ascertained, under the provisions of the statute above mentioned. It would be too strict however to apply the latter rule to this case. The heirs resided in Virginia, and the lands were wild and uncultivated, and scattered over the State of Kentucky. The quantity and locality of the lands were probably unknown to the heirs, who were infants at their father's death; and cannot properly be considered as in default, by suffering any of the lands to be forfeited for non-payment of taxes, or by not having afterwards redeemed them from forfeiture. The appellant is seeking to enforce an equity against the heirs, and the just measure of that equity cannot exceed the benefit derived by them from the Kentucky land. But while on the one hand the heirs should not be charged with the value of such of the said land as may have been lost by forfeiture; so on the other they should be charged with any rents and profits which may have been received by them on account of the said land. For though, as the law has been settled in Virginia, heirs are not bound for rents and profits accruing before a judgment or decree has been rendered against them, yet as in this case, we are departing from the letter of the Kentucky statute of 1798 for the purpose of doing equity between the parties; and as an account has been decreed against the appellant in the Court below for rents and profits; it would seem to be just and right that a corresponding account of rents and profits received by the heirs should also be taken. Otherwise, if the heirs were entitled to recover, but were not accountable for, rents and profits, they might, by delaying their suit until the amount of rents and profits of the warranted land was equal to the value of the land descended, recover the whole of the warranted land; whereas, if they had sued immediately after the ancestor's death, they might have been barred of any recovery whatever. If the heirs prefer to account for the value of all the land descended, instead of the value of such of it as has come to their hands, with rents and profits actually received, of course they have a right so to account. But I imagine they would greatly prefer to account for the value of the descended land which has come to their hands, with rents and profits actually received, and interest on the price of such as they may have sold. Indeed I doubt whether any rents and profits have been actually received by them. But if any have, it is right they should account for them.
But it is contended by the counsel for the appellees that as the assets of Richard Hoomes were marshalled in a suit in Caroline, which was commenced in 1826 and ended in 1842, the style of which was Collins v. Garrett; and as the creditors in that suit were not entirely satisfied; they, if any creditors of Richard Hoomes, and not the appellant, are entitled to charge the appellees for the value of the Kentucky lands descended to the latter. The answer to this objection is, that a final decree was rendered in that suit in 1842. That the appellant was not a party to that suit, not considering himself a creditor until the decision of the case in 1 Gratt. 302, in 1844, and is therefore not bound by the decree. That by the Kentucky statute of 1798, the heirs are bound for the value of any land descended to them, and if this charge be not in its nature paramount to the claims of all other creditors of the ancestor, it would seem at least to be good against any claims which may not have been asserted before such charge is enforced by judgment or decree. And that at all events the appellant would be entitled to recover out of the Kentucky assets a proportion of his claim equal to that which other creditors of equal degree have recovered of their claims out of the Virginia assets, before they could participate with him in the application of the former; which would doubtless give to him the whole of the Kentucky assets.
I have now considered all the questions presented by the record. My opinion has been protracted, perhaps, to too great length. But the number, novelty, difficulty and importance, of the questions involved, and the fullness and ability with which they were discussed by the counsel on both sides, seemed to render a long opinion necessary.
ALLEN, J.
I am of opinion, that the heirs cannot be called to account in a Virginia Court for real estate descended to them in another state, unless it shall appear that the heirs have disposed of the land and received the proceeds. That as to immovable property the lex rei sitæ controls, and if subjected to the debts of the ancestor, it must be by the laws and through the tribunals of the country where it lies. That the mode of proceeding being in rem, to subject the thing itself, the Courts of a foreign jurisdiction can take no cognizance of it; nor would the Courts of the local jurisdiction, in a proceeding by creditors to subject the property itself in the mode prescribed by the local law, pay any respect to a proceeding in a foreign jurisdiction against the heir personally.
I am further of opinion, that it is not incumbent on the heir to redeem for the benefit of creditors waste lands descended to him, and which may have been forfeited for taxes accrued either before or after the death of the ancestor; and that if such forfeited land be thereafter sold for the non-payment of taxes, it is competent for the heir to purchase and hold as any other purchaser.
And being of opinion, that it does not appear that the heirs have received any thing from the Kentucky lands descended, except in respect to lands as to which the descent was broken by a sale for taxes, I should on that ground be for affirming the decree.
On the other questions involved, I think the covenants in the deed bound the heirs, and that the recovery referred to constituted a breach, and that the covenants run with the land; and that the assignee, by deed of the whole or a portion thereof, is entitled to the benefit of the covenants, and may recover for the breach.
The decree was as follows:
A majority of the Court is of opinion,
First. That the covenant of Richard Hoomes in the deed to Samuel A. Apperson, in the proceedings mentioned, extends to the claim of the children of said Richard, which was sustained by this Court in the case of Dickinson v. Hoomes, 1 Gratt. 302; and will therefore be broken by an eviction under said claim.
Secondly. That it is a covenant running with the land; and the appellant, as assignee of a portion thereof by a regular chain of conveyances, is entitled to the benefit of the said covenant for his indemnity against the said claim.
Thirdly. That as by the law of Kentucky, as it existed at the death of said Richard Hoomes, and still continues to exist, lands in that state descending from an intestate can be subjected to the payment of his debts, by proceedings either in law or chancery; and " if the deed of an alienor doth mention that he and his heirs be bound to warranty, and if any heritage descend to the demandant of the side of the alienor, then he shall be barred for the value of the heritage that is to him descended; " a Court of equity of this state may compel the children of said Richard Hoomes, residing within its jurisdiction, to account for any lands in Kentucky descended to them as his heirs, as a trust subject for the payment of his debts. And although a Court of equity of one state, in the exercise of a sound judicial discretion, may in some cases decline to act on persons residing or found within its jurisdiction, where the subject sought to be affected is situated in another state; yet, in this case, it would be an exercise of sound judicial discretion on the part of the Circuit court of Caroline to compel the said heirs, as a condition of the relief they are seeking as aforesaid against the appellant, to account to him, so far as may be necessary for his indemnity against the breach of said covenant, for any benefit they may have received from any land in Kentucky descended to them from the said Richard.
Fourthly. That it appearing to the Court that John Hoomes the elder, was entitled at his death to eighteen or twenty thousand acres of land in Kentucky, to one fifth of which the said Richard became entitled as devisee of the said John, and remained so entitled at the death of him the said Richard in 1823; the said one fifth descended from the said Richard to his said children. And although it further appears to the Court, that the greater part of these lands were forfeited to the State of Kentucky for non-payment of taxes accruing thereon after the death of said Richard, and so may be forever lost to the said heirs; and although it would be too strict, under the circumstances of this case, to hold the said heirs accountable, as for assets by descent, for the value of any lands so lost; yet, as it appears that a portion of said lands has actually come to the hands of the said heirs, and been by them converted into money; and that they may yet be entitled to other portions of them; the said Circuit court, instead of dismissing the bills of the appellant, should have directed one of its commissioners to enquire, ascertain and report what lands in Kentucky descended from the said Richard to his heirs, and have come to their hands or been sold by them, and the value or amount of sales thereof; what rents and profits, if any, have been received by them on account of any of the said lands; when any such amount of sales, or rents and profits were so received; what expenses have been incurred by them or any of them in redeeming, obtaining possession of, surveying, dividing or selling any of the said lands, or collecting the rents and profits or proceeds of sale of any of them; and any other facts which may, in the opinion of the said Circuit court, be necessary to ascertain the extent of any benefit received by the said heirs from the said lands. And if it should appear that the amount of said benefit is equal to, or greater than, the value of the land which the said heirs are entitled to recover of the appellant, and the rents and profits thereof, they should be altogether barred and enjoined from such recovery. But if the said amount should be less than the said value, rents and profits, then the payment of the same by them to him should be made a condition of their said recovery; and unless such payment be made in a reasonable time, the said land, or so much thereof as may be necessary, should be sold therefor.
Therefore it is considered, that the said decree is erroneous; that it be reversed and annulled with costs: and that the cause be remanded to be further proceeded in on the principles above indicated.