Kemp's Ex'x. v. M'Pherson

Martin, J. delivered the opinion of the Court. Joseph Staley by his last will and, testament, among other things, devised his dwelling plantation to his son Jacob, charged with the payment of ¿£2,000, in legacies to ten of his children. Jacob sold this land to Frederick Kemp for ¿£2,700, and executed a deed to him for the same. Part of the purchase money was paid at the time of the deed, and bonds were given for the residue. Some of those bonds were paid by Kemp to Staley, and three of them were sold and assigned by Staley to M'Pherson, and one to Mrs. Bierly. One of the bonds assigned to M‘Pherson was paid by Kemp when it became due, and a suit [335] was commenced on another against Dorothy Kemp, executrix of Frederick Kemp, and judgment obtained against her. This-bill was filed to obtain an injunction to stay proceedings on that judgment, because the land sold by Staley to Kemp was charged with these legacies, and the payment of the purchase money ought not to he enforced until it was freed from the incumbrance. The bill states that Frederick Kemp is dead, having first made his last will and testament, and appointed the complainant his executrix and devisee. The will of Frederick Kemp, and Ihe deed from Jacob Staley to him, are both filed as exhibits by the complainant. The first objection relied on in the argument was the want of proper parties. That the land sold to Kemp did not pass by his will, but descended to his children as his heirs at law, and that they ought to have been complainants in the cause. If Mrs. Kemp is entitled to an injunction, it must be as the devisee of the land charged with the payment of these legacies. It is a settled principle of law, that a will can transfer no land, unless the testator was entitled to it, at the timo he executed his will. This will bears date the 4th of February 1808, and the deed was executed on the 19th of February 1810. The date of the will is prima facie evidence of the time it was executed, and no attempt is made to prove its execution at any other time. It therefore appears from the exhibits of ihe complainant herself, that the deed was executed more than, two years after the date of the will. But it is said this fact was not in issue — that it was admitted by the respondent, and cannot now be enquired into. The bill states in general terms, that the complainant was the executrix and devisee of Frederick Kemp, and the answer admits “that the complainant is entitled to this land under the will of her husband.” Whether this admission would preclude the respondent from availing himself of the facts, as proved by the complainant, would be a question of importance, and would receive the attention of the court, if upon the merits of the case it appeared the appellant was entitled to relief against the judgment. The court, however, have formed a different opinion. They think the decree of the court below is correct, upon the merits of the case, [336] and it is therefore unnecessary to inquire who ought to have been made complainants. Suppose the appellant to be the devisee of this land under the will of her husband, is she entitled to the relief prayed for ip the bill? The land was certainly charged with the legacies; and, Whether in the hands of Staley, the devisee of his father, or ef Kemp, the purchaser, was liable for the payment of them. Does M'Pherson, the assignee of Staley, stand in a better situation than his assignor? If he docs, it must arise from other circumstances than the mere assignment; for as a general rule no position is better established than that the assignee stands in the shoes of the assignor, and takes the claim, subject to all the equity it possessed in his hands. Yet it appears there are exceptions to this rule, and circumstances may place the assignee in a better predicament than his assignor. The conduct of the obligor may change the relation that before existed between him and the assignee, and deprive him of an equity he had against the assignor. In Sugden’s Law of Vendors, 482, it is stated — “It may be laid down as a general rule, that a purchaser of a chose in action, or of an equitable title, must always abide the case oí the person from whom he buys — -And yet there may he a case in which a purchaser, merely by sustaining that character, will be in a better situation than the person of whom he bought." In Norton vs. Rose, 2 Wash. Rep. 251, Judge Roane says, "although I am clear in the opinion that an equity existing against 9 bond, is not lost or extinguished by an assignment for a valuable consideration, and without notice, yet it may be lost by length of time, or other circumstances.” The same doctrine was established in the case of Buckner & others, trustees of Beverly, vs. Smith, Stubblefield & others, in 1 Wash. Rep. 296. Beverly, when under age lost a considerable quantity of tobacco,at unlawful gaming with Smith, who for a valuable consideration gave an order on him to Stubblefield. Beverly accepted the order, and gave his bond to Stubblefield for the amount. Stubblefield assigned the bond to Graham, and Graham to Dixon, each, paying for the same a valuable consideration. Beverly promise ed Dixon to pay him, and confessed judgment in an action [337] brought on the bond. Judge Lyons, in delivering the opinion of the court, after stating that the assumpsit of Beverly tQ Dixon was after he came of age, said — “It is in general true, that the assignee of a hand of this sort can be in. no better situation than the obligee, but, this case is very different, and the difference is produced by the conduct of Beverly, who by his assurances of paj^ment induced Dixon to receive an assignment of it. He not only concealed from him the objections to the bond, but afterwards assumed to pay it.” In the case of Hoomes, Executor of Elliott, vs. Smoot, 2 Wash. Rep. 392, it. is declared by the court, “that all bonds given for a gaming consideration are void as between the parties, and it is equally true that the assignee cannot stand in a better situation than the obligee, unless there be some particular circumstances in his favour, independent of the mere assignment. But if an innocent man shall bo induced to become the purchaser of such a bond by the obligor, it is a deceit upon him, and he ought not to be subject to the same equity to which the obligor was entitled against the obligee.” ’Tis true, in those two last cases it is stated, the conduct of the obligor induced the assignment. But that, it is conceived, can make no difference. The gist of these decisions is, that it was a deceit upon the assignee — < it lulled him into a false security, and by inducing him to believe the bond would be paid by the obligor, in the one case made him take an assignment, and in the other prevented him from looking to the assignor for redress. It is not the time, but the effect of this conduct, that is to be regarded. He who asks equity, must be prepared to do equity; and an obligor, who with a knowledge of the whole transaction, promises to pay the assignee, cannot be favoured in a court of chancery against his solemn engagement. Lotus for a moment look into the evidence in the record, and see if there are such circumstances as would lake this case out of the general rule. It cannot he doubted that Frederick Kemp knew those legacies were a charge upon the land he purchased of Staley. He had both constructive and positive notice of it. In the deed' of Staley to him, it is expressly stated, that Staley was entitled to the land conveyed, by the last will and twdaroenfc of big [338] deceased father. And Mrs. Kemp, in the presence of her husband, and uncontradicted by him, declared ‘‘the will was" on the table at the time the bonds- were executed.” These bonds were- to be paid at différent, and some of them at distant periods; and yet Kemp, with a knowledge of the incumbrance, ushers them into the world without any intimation-on the- face- of them that they were liable to a charge. This is-certainly a- concealed equity, and although not of'itself sufficient to change the relation of the assignee, is a strong circumstance, with others, to rebut the equity set up against these bonds. At the time the deed was executed; part of the purchase money was paid, and Kemp bei'ng-indisposed’, several bonds were executed by his wife and son for the balance; these bonds were* regularly paid? to Staley as: they became due; and in 1811, Kemp having recovered his health, the bonds then remaining in the hands of Staley were-cancelled, and four others were executed by Kemp-, with his-- son as security for the- amount of them. Were not these circumstances (without the aid of any declarations by Kemp,) calculated to convey the impression that Kemp would pay to- Staley these bonds- as- 'they became due; under a confidence that Staley would discharge the legacies;: jrnd is- not the testimony conclusive that such was his impression? Staley was his son-in-law, and he was disposed' to favour him. He says, “he trusted Staley because be made such fair promises-that he would pay the legacies,”’and regrets that her turned out a worthless fellow, and had d'eceived him; and in two conversations, when Mrs. Bierly called on him relative to these bonds; first at the room of Mary Kemp, he- told her she-was-safe in taking one of them — that he would pay those bonds, although- he- should lose by Jacob Staley;- and afterwards, at his own bouse, made the same promise, and again- complained: of bis misplaced confidence in Staley. Is-, it not evident, if Frederick Kemp-had lived', he would’ have- never set up this defence against the bonds in the hands of the assignees? One of them became- due in his lifetime, and without making any objection, he-paid it to M‘Pherson; and his subsequent conduct and promises clearly prove it was his intention to pay them. He had no equity- to be relieved against the payment of these bonds,: and of aonrse bis ^devisee could derivo none from, him* DECREE AÍTIEMED,,.