Lammot's Heirs v. Bowly's Heirs

Si'kkiiín, J. at tliir. term, delivered the opinion of the court. t£n the fth of Mij, in the year 1773, William Lux of 'Llthnore county, made and executed, in due form of law. Ids i,:st will and testament, which contains the follow -ir clause»: “1 give and bequeath to my dear wife, Agnes i.-ux, lor and during her natural life, my tract of land wnd >,,.1 station called Chatsworth, with (he dwelling-house, and ¿L (he buildings and improvements thereon, (save and eseept the rope-walk.”) “I give and bequeath to my dear son George Lux. ins heirs and assigns, my tract of land ealle.il Chatsworth, lying and being in Dali ¡more county, containing nine hundred and fifty acres; but in case my said son should die before he attains of legal age, and without issue, then I leave and bequeath the said tract of land, called Chatsworth, to my dear wife Agnes Lux, or her assigns, to be at her own will and disposal, as il originally was, (save and except lite acres, to belaid of in a long «quare, on the south two degrees west one hundred and thirty-one perches line, being the fifth line from the begiuniug, and that said five acres, together with the rope-walk and all the buildings and improvements thereon, I give and bequeath to my dear nephew and partner, Daniel Bowl;', his heirs and assigns.” George Lux, on the 17th day of April, in the year 1787, by deed, reciting that whereas he was indebted to several persons in large sums of money, which he was desirous to discharge, and for oilier purposes therein specified, conveyed, among other property, all that part of a tract of land called and known by the name of Chatsworth, which had not (heretofore been granted and conveyed, to Mtlliam Bussell, and his heirs, In trust, to sell and dispose of the same, and with the proceeds of sale to pay and extinguish the debts due by him,ihe said Georgs, and the residue thereof, if any there should be, to appropriate in the manner by the said deed directed. On the 20(h day of July, in the year 1787, William Russell, in virtue of the trust with which he was invested by the deed above mentioned, sold to Daniel Larnmot fourteen acres »;,,i one quarter oí an acre of land, in fee simple, bain;; part Li the said tract of land called Chatsworth, And on the second day of April, in the year 1789, the said WiHiiua Russell sold to the said Larnmot two acres more of said land, in fee, making in the whole sixteen acres and one quarter of an acre, for Use consideration of five hundred and ninety-three pounds fifteen shillings currant mo 520 ney. William Lux and Daniel Bowly, being indebted t© ¿ 'certain Harry Dorsey Gough in the sum of five hundred pounds, by bond bearing date the eleventh day of August, in the year 1768, it was agreed between the said' Russell, Lammot and Gough, that Gough would credit the bond of Lux and Bowly with the amount of the purchase money, and that the land, so as aforesaid sold, should be Conveyed to Gough', to make, the same responsible to him for the credit so given. In pursuance of said agreement, •William Russell, on the 27th day of April in the year 1789, conveyed the said sixteen and a quarter acres tó Gough, in order to make the same responsible to him for the credit so given. On the 9th day of May, in the year 1801; Gough conveyed to Lammot the said sixteen and a quarter acres of land, for the consideration therein Specified. It appears, from the proof in the cause, that Bowly had perfect knowledge of the salé of the fourteen and a quarter acres of land; and of. the location thereof, and there is reason to believe, from the, testimony, that he also knew of the second sale of the two acres; It further appears from the evidence; that On.the days when the said sales were respectively made, the bond of Daniel Bowly and George Lux was credited with the amount of the pur. ihase money, stipulated to be paid for the sixteen and a quarter acres of land sold as aforesaid; the bond of William Lux and Daniel Bowly having been substituted, after the death of William Lux, by the bond of Daniel Bowly ánd George Lux. In what character Bowly stood bound in the original. bond, whether as principal or surety, no whcffe expressly appears from the proof; though it is strongly to be inferred, from the circumstances in the case, that they were both bound as principals, as if they were not, it is not to be believed that Lux would have assumed upon himself a liability to pay the, debt after the death of his father. The said William Russell, by deed bearing date the 7th day of May 1796, relinquished his trust to Daniel Bowly, who on the 6th of June 1799, substituted the bond of Bowly and Lux, by his own obligation to 'Gough, for £1000, which it is presumed he was induced to do, as he had succeeded to the trust originally vested in Russell, and had thereby obtained possession of George Lux's property, which he was authorized to apply to the payment of his part of said debt. Although the bond of Bowly and Lux 521 Was credited by Gough with the amount of the said sales of 16.i- acres of land, sold by Bussell to Lammot, it does not appear that Bowly derived any benefit or advantage fey such credit, because it amounted to very little more than Lux’s one half of the debt, supposing them to be equally bound, (which, from the facts and circumstances in the case it is presumed they were;) and because it further appears, that the bond from Bowly to Gough, which was substituted for the bond of Bowly and Lux, was satisfied and paid with Bowly’s own funds; and because; it further appears from the testimony in the. cause, that William Lux, at the time of his death, was considerably indebted to Bowly, for the payment of which debt, the property of William Lux was more than sufficient. It appears from the testimony of the late Judge lUdgely, who wras the intimate friend atid legal adviser of Bowly, that although Bowly was well acquainted with the devise to him in the will of William, Lux, yet ho never believed that lie became entitled to the land thereby devised, till the dea ill of George Lux without issue; and that after the death of George Lux’s son, and he thinks also aiter the death of his wife, he was consulted by Bowly on the legal effect and Operation of certain clauses in William LuxPs will, and particularly with regard to the rope-walk which was effected upon the five acres of land devised to Bowly by the will of William Lux\ and that, the opinion which he gave to Bowly was, that he became entitled to the rope-walk, and the laud appertaining to that establishment, under said will, independent of the contingency of George Lux’s death without issue.' Some time after Bowly had obtained this opinion, he instituted an action of ejectment in the late general court, for so much of the five acres as Lammot purchased; on the abolition of which court, the cause was sent to Baltimore county court, to be there tried; the judges ol that court were of opinion that Bowly took nothing by the devise, from whose judgment there was an appeal to this courts and at June term 1810, the judgment of the county court was reversed, and the case remitted to said county court, with a procedendo, where the suit is now pending. The complainants, who are the representatives of Lammot, filed a bill on the equity side of Baltimore county court, to obtain an injunction to stay proceedings at law, and to hays a conveyance of all the right and title of Lowly’s ru 522 jpreseñíatives, to the purchases made by Lammot in hid life-time, executed to them. The county court, with the consent of the parlies, decreed pro forma á dismissal of the complaináfít’s bill, with costs to the defendants; front which decree the defendants have appéáled to this court; The question now to bé decided is, whether or not they have shown sufficient groitnds of equity to entitle them to the relief, which they come hereto obtain? And Whether’ they ate so entitled, depends upon the agency which Bowly had in the purchases made by their deceased ancestor; and the knowledge lie had of his rights at the time they were made. Tlie principle involved in the decision of this question is an important one, as well on account of its immediate bearing upon this case, as of the influence and operation it may hereafter have in deciding questions of title which may arise under similar circumstanced; The question presented for the decision of this court is simply this, whether á man, having a legal title to a parcel of-land, but who is ignorant of his right, forfeits his title to that land, by concealing ’his right, when he knows th'át another is about to purchase it from a third person? And this question is to be" decided upon the principles of equity and conscience, which can never inflict a punishment upofi innocence', or decree a-forfeiture, when there has been no’ fault. OH the contrary, it is at alj times’ the anxious wish of a court of chancery to réliéve against forfeitures and penalties, where the principles of justice and equity do not forbid it. Has then the conduct of Daniel Bowly been such as to inerit the infliction of punishment at the hands of this' court? Because a punishment it is téVmed by the authorities which, treat itpon the subject, and they speak of the forfeiture as a punishment inflicted by -reason of the guilt of the party in not disclosing his right. It would, at the first blush,- seem' quite sufficient to ask,- how can a man disclose a title of winch he has no knowledge? To the com~mon sense of the woffl'd this would’ seem to be an impossibility, and the law, which is a system of Written reasrtn, never enforces- a vain or impossible thing. It is proved by all the witnesses who speak upoii the subject, that they never heard of Bowly's claiming any title to the property in question, until long after the purchases were made',by Lammot, and all of them were his neighbours, and some of them his most intimate friends. Nor is it armatter of surprise that Bowly was unacquainted- wit& 523 the operation of law upon that clause of William Tmt?s will, under which his representatives now claim title to the property in controversy, since it appears that the judicial tribunals of the slate entertained different opinions upon the true construction of it, aided as they were by all the, lights of science in their exposition of it. it may then be safely assumed to have been at least a doubtful question, and one upon which it is not unreasonable to say, that Bowlij might have been in the dark. If then he was ignorant of his title, what says the law upon the subject? In 1 Powell on Contracts, 131, 132, 133, after stating that there, might ha either an express or tacit assent to a contract or agreement, be says, “a tacit assent may arise in several ways — It may be inferred from inaction, or forbearance of acting. Thus a man, by his silence, in case he be present, and acquainted with what is doing, is supposed to give his assent to what is then done;,unless it appears that he was awed into silence, or any way hindered from speaking.” “And in, such cases, assent is presumed even against an infant; for, it is meant as a- punishment for his concealing his right, by which an innocent, person is drawn in to advance his mo» ney.” If then a tacit assent is imputed to infants, who are peculiarly the objects of a court of chancery’s care anti protection, it can only bo upon the ground of knowing then rights, and a culjsable and fraudulent concealment of such knowledge. T!¡e same author says, iu page 134, “in.or-, der to warrant us in concluding from a man’s silence, that he has relinquished his right, two things are necessary — . The first is, that he should know that what belongs to him is conveying to another; for when one forbears to act through mere ignorance, it etui have no effect” — and “secondly, that he should be voluntarily silent, though he has full liberty to speak.” So in 1 Fonblanque, 161 — The author says, “there"is also an implied as well as an express assent; as where a man, who has a title and knows of it, stands by, and either encourages, or does not forbid the purchase, he shall be bound, and all claiming under him, by it. Neither shall infancy or coverture be any excuse in such case. And this seems a just punishment for his concealing his right, by which an innocent man is drawn in to lay out his money.” It is then upon the principle, that the party committed a fraud by concealing his right, that ihe becomes bound, and all claiming under him. In Niven vs. 524 Belknap, 2 Johnson’s Rep. 589, the same principle is recogí nized by Thompson, Justice, that where a man has a title, and knows oí it,(and either encourages, or does not forbid the purchase, he, and all claiming under, him, shall be bound by such purchase;.and in support ófhis opinion he-refers to 1 Fonblanque, 161. In Levy vs. The Bank of the United States, 1 Binney’s Rep. 27, the case was this; a forged check was credited as cash in the holder’s bank book, and he being, afterwards informed that the check had been forged, under:, a mistake of his legal-rights, agreed that if the. check was a forgery, he would not take advantage of - the deposit. Shippen, chief justice, decided} that., the party was not bound-by his-agreement, it being made under a mistake of-his right, In this case the chief-justice says, “the case of-Penn and Lord Baltimore is decisive to this point, I was present at the. agreement half a century ago, and heard-. Lord Hardwicke say, though it is not mentioned in the printed report, that if- Lord- Baltimore ma.de the agreement in question, under a mistake of. his right to another-degree of latitude, he ought to be relieved, but that he was not mistaken.”. In Green vs Price, 1 Munford, 453, Judge Tucker lays down the law to be, that if a man has an equitable title to lands, and- knows of- it; and either encourages, or does not forbid the. purchase, he, and all claiming under him, shall be bound¡ by it; and in support of his opinion he refers to 1 Fonblanque, B. 1 ch. 3, s. 4. Thus it appears, that some of the most enlightened and eminent judges of, our country, have given their sanction' to the doctrine, that a'party is not bound by Ins silence, unless he has a knowledge of- his right, and fraudulently conceals it where he ought to speak. In Bize vs Dickason, 1. T. R. 285, Lord Mansfield, in delivering the opinion of the court, is reported to have said, “the rule liad always been, that if a man has actually paid, what the law would not have compelled him to pay, hut what in equity and" •conscience he ought, he cannot recover it back' again in an action for money had and received. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action.” A\><ms, in his essays, treating upon mistakes of law, lays down the law to be, that where no natural obligation intervenes, even what is paid under a, mistake in law, may be' recovered back; and he refers, ija. 525 support of Ins opinion, to certain decisions of Lord Ecnyon and Lord Mansfield, to the same effect, and observes, that he conceives it may now be positively stated, that this opinion is adopted in the English law. In Evans vs. Llewellyn, 2 Brown’s Chancery Cases, 150, it is decided, that a conveyance obtained from persons uninformed of their rights, should be set aside, though there was no actual fraud or imposition. In Hunt vs. Rousmanier, 8 Wheat. 214, the chief justice, in speaking of the case of Lansdowne vs. Lansdowne, says, if it be law, it> has no inconsiderable hearing on this cause. There are certainly strong objections to this decision in other respects; but as a case in which relief has been granted, or a mistake in law, k cannot be entirely disregarded. He then goes on to say — Although we do not find the naked principle that relief may be granted on account of ignorance of law, asserted in the books, we find, no case, in which it has been decided, that a plain and acknowledged mistake in law, is beyond the reach of equity.’*, We have here, then, the high authority of this most distinguished man, and eminent judge, that a party acting under a clear and unequivocal .mistake of his legal rights, is entitled to relief in a court of equitable jurisdiction; and that the doctrine of a court of chancery is not, as has been contended, that equity will not administer relief upon that ground, upon the principle that every man is bound to know the law. It is not intended to say, that the plea of ignoranfia juris would in all instances bo available in civil, cases, (in criminal it never can be,) because soma legal propositions are so plain and familiar, even to ordinary mind?, that it would he doing violence to probability to impuie ignorance in such cases; but it is only meant to say, that where the legal principle is confessedly doubtful, and one about which ignorancejnav well be supposed to exist, a person acting under a misapprehension of the law in such a case, shall not forfeit any of his legal rights, by reason of such mistake.) 8o Newland, in bis treatise on contracts, says, that Imstake or misapprehension of the law, is a ground of relief in equity; as if a man purchases his own, estate, and pays for it, the court will order the purchase money to be refunded, on the ground that there was apkin mistake. It appears then, from what has been observed 114 the foregoing opinion, that some of the most enlightened 526 and celebrated men, whose characters are recorded in ]&' dicial history, have given the sanction of their illustrious names to the doctrine, that no man, acting under a plain and acknowledged mistake of his legal rights, shall forfeit those rights, in consequence of such misapprehension. The. authorities in support of this principle, might be multiplied to an almost indefinite extent, but it is deemed unnecessary further to enlarge upon the subject. It is the opinion of this court, that the decree of the court below be affirmed, with costs to the appellees. decree affirmed.