Ross v. Woodville

the following opinion of the court was delivered by Judge Roane. The court is of opinion that, as the contract respecting the sale of the land in the proceedings mentioned was made between the agents of James Stevenson on the one hand, and Edmund Penn, the principal obligor in the bonds, (the judg 327 inents on which arc sought to be injoined,) on the other, it was competent to the said last mentioned party to bind both himself, and the appellant as his surety, by a waiver of such a title to the land aforesaid, as he might otherwise have required to be dc-creed to him, as \ condition precedent to the payment of the price thereof; saving, nevertheless, the .right of the said Penn, and of the appellant as claiming under him, to go on and obtain such conveyances as they may shew themselves to be entitled to, notwithstanding the dissolution of the said injunction. The court is also of opinion, that the injunction obtained by the said Penn, on the same ground with the present, in the previous suit, among the exhibits, having been in fact dissolved by the chancellor, which decree of dissolution is still in full force, and unappealed from, (although, according to the present impressions of the court, it may have been il* legally and irregularly dissolved, it not having been dissolved by motion in open court, but expiring, by the coming in of the answer, under the terms of the grant thereof by the chancellor, and having been refused by him to be re-instated, on a motiom made for that purpose,) the said decree of dissolution is obligatory on the appellant as well as the said Penn; and on this ground, the court is of opinion that the present injunction ought not to have been granted. The opinion of the court is, therefore, that the decree of dissolution in this case is erroneous, so far as it requires a title to be made to the appellant to the land in question, as the cokdition on which the said dissolution should haye its effect: but that decree being in this respect more favourable to the appellant than it ought, and not being complained of on the. part of the appellees, the court is of opinion, and accordingly decrees, that the said decree should be affirmed; and that the cause should be sent back to the Court of Chancery, in order that such farther conveyances should be decreed, (after all the parties should have been brought before the court,) as the appellant shall shew himself entitled to.