Campbell v. Digges

Hanson, Chancellor, (May term, 1797,) decreed as follows, viz. The said cause being submitted, the bill, answers, exhibits, agreements, and all other proceedings, were by the chancellor read and considered. This is an extraordinary case — -It is not that of an application for a sale made by the creditors of a deceased person, whose real estate has descended or been devised to au infant. If it could be considered as such. [15] the chancellor could not decree a snlej because it does not appeal- that the personal estate left by William Digges has been exhausted in, or is insufficient for, the payment of his debts. Nor is the case that of an application for the specific performance of a contract made by a tenant in fee simple. The meaning of William Digges’ will appears to be. this-. His son George was to take the whole real estate| and the whole personal estate, undiminisiied by payment of his debts, was to be divided amongst bis children at the end of three years after his decease. The said George was to be burtbened with all his debts, and that be might be enabled to pay them, he was to possess the personal estate, and use it with the land during the three years. If the profits of the whole estate during that time should be adequate to the purpose, the whole land should belong to George Digges, as tenant in tail. If the profits should be inadequate, the deficiency should he supplied from the lands, and only the land remaining after payment of debts was to be considered as in-tailed. And to carry the testator’s intent fully into effect, the chancellor conceives, that if the profits of the three years should not be applied, the debts were then to be charged on the lands. It is certain that tins will could not oblige William Digges’ creditors to wait the term of three years, or prevent them from having immediate recourse to the personal estate. But supposing them willing to coincide with the view's of the testator, it is equally certain that they could not in any manner resort to the real estate until the expiration of the term. Whether or not after the term they were entitled by the will to a sale of the real estate under a decree of this court, in exoneration of the personal estate, is perhaps a question of some difficulty. But there can be little doubt, that the sisters of George Digges were entitled to the aid of this court to have an equivalent from a sale ftf the real estate, in case they had been deprived of their shares of the personal estate, or of any part thereof, on account of the debts. Although the complainants do not apply for a sale, and the sisters ai-e not amongst the complainants, it is of consequence to consider what ought to be tlie result of such an application. The chancellor conceives it to be a principle essential to the ends of justice, that, if what this court would have decreed, on proper application, has been done without its authority, and there is sio method of doing justice without ratifying what is done, matters ought to be placed on the same footing as if tiie authority preceded the act. Now it appears í>obí the proceedings, that George Digges did not, in the [16] course of his three years use of the estate, receive pro» fits sufficient to discharge even one-third of his father’s debts; that what he did receive was not applied to the discharge of his father’s debts; that conceiving himself authorised to sell a part of the real estate for that purpose, he contracted with the complainant, John Campbell, for the sale of the tract of land called Charles-Town, put him in possession thereof, and received from him about 13007. which he actually applied towards the discharge of those debts; and it is admitted by all concerned, that the price stipulated was fair and adequate. If the contract bad not been made, the said lanflj or any other part of the estate, might on proper application to this court be decreed to be sold for the payment of those debts. Taking then for granted what may be doubted, that George Bigges was not authorised to make the contract, the defendant would not be benefited by this court’s refusing to confirm the contract; and by confirming injustice may at once be done to all parties, and much trouble and expense saved. It is thereupon, this 16th day of May, 1797, by A. C. Hanson, Chanccllor, and by the authority of this court, adjudged, ordered and decreed, that in case the complainant, John Campbell, shall on the 25th of December next, bring into this court, to be applied under the chancellor’s direction as hereafter mentioned, the sum of 38647. 12s. 9(7. which is the sum that will be on that day due on his contract; or in case the said Campbell, at any time before the said 25th of December, shall bring into this court, to be so applied, the sum of 26407. 19s. 8(7. with interest from the 5th of April, 1790, Robert Brent,' the guardian of the defendant W. D. D, shall, as guardian and in behalf of the said defendant, by a good deed, to be acknowledged and recorded agreeably to law, give, grant, &c. to the said John Campbell, and his heirs, the tract of land commonly called Charles-Town, in Cobneck, Charles county, and all the right, title, interest and estate therein and thereto, which was in William Bigges deceased, and which by him hath been devised, or from him hath descended; and the said John Campbell, his heirs and assigns, shall thereupon be entitled to hold the said land free, clear, and discharged from all claim of the defendant, claiming,by, from, or under the said William Bigges or the said George Bigges, deceased. And on the said John Campbell bringing in money as aforesaid, the defendant C. D. shall by a iike deed, convey and release to him, his heirs and assigns, her right of dower in the said land. And if the said John Campbell shall bring into this court the principal and interest due on his contract as aforesaid, there shall be paid to [17] '¿he said C. D. thereout the sum of 4667. 11s. 6d. which is one-eighth part of the whole purdia.se, together with interest on the said sum until the time of the said Campbell’s bringing in the said money. And the residue of the money brought in shall be applied, under the chaneellor’s direction, to the payment of the costs of this suit, and of the debts due from the said William Digges at the time of his death, and still remaining unpaid; and if any surplus shall remain it shall be subject to the future order of the chancellor.