Harvey v. Branson

A decree in chancery, disposing of the whole subject, deciding all questions in controversy, ascertaining the rights of all parties, and awarding the costs, though it appoint a commissioner to sell part of the subject, and account for and pay the proceeds to the parties, with liberty to them to apply to the court to add other or substitute new commissioners, or for a partition of the subject directed to be sold, in kind, is a final decree.

Levi Branson filed his bill against Harvey and wife and Peck, setting forth that his grand-father, Benjamin Borden the elder, by his will in 1742, among other things, directed that all his lands on the waters of James river should be sold, excepting 5000 acres of land, all good, which he gave to five of his daughters, Abigail Worthington, Rebecca Branson, Deborah Borden, Lydia Borden, and Elizabeth Borden, that is, 1000 acres of good land a-piece to every one of the said five daughters above mentioned, to them and their heirs and assigns forever : that his widow and eldest son and heir Benjamin Borden, the younger, were executors of this will: that the 1000 acres were never allotted to Rebecca Branson: that she was dead, and the plaintiff was her heir at law; that Benjamin Borden, the younger, as executor and heir, took possession of all the lands of his father: that he died leaving a daughter Martha, his heir, with whom the defendant Harvey intermarried : that all the lands unsold have passed into their hands : and, after some farther details, the bill prayed a decree against Harvey and wife and Peck (who was stated to have some of the lands in possession) for the 1000 acres of land. The answer of the defendants, acknowledged most of the facts in the bill, but stated, that Rebecca Branson and her husband, in 1745, conveyed the land by deed to Benjamin Borden, the younger, with general warranty; and, though it should appear that the right of Rebecca was not divested by that conveyance, yet the defendants had a right to resort to the warranty of the plaintiff’s father, which descended upon him &c. Soon after answering this bill, Harvey and wife filed a cross-bill against Branson, stating his claim for the 1000 acres, and the deed of his father and mother; that it was made for a valuable consideration, but the privy examination of the wife was not taken : charging, that Branson was bound by the warranty and covenants of his father, and that he has received or claims considerable estate from him, which they seek to have decreed them, if the plaintiff should recover the land : especially, a claim made by Branson for his father’s portion of a part of the estate of Benjamin Borden the elder, which that testator directed should be sold, and divided among his children. This bill was answered. On a hearing of the original and cross-suits, in December 1813, the chancellor decided, that Branson was entitled to the 1000 acres of land devised to his mother : that the warranty in his father’s deed did not bind him, because no assets had descended to him: that this case, however, was not ready for a final decree, because it appeared, that the particular land claimed in the bill had been already appropriated in satisfaction of the claim of another daughter: And it being suggested to the court, that there were other persons possessed of land subject to the claim, leave was given to amend the bill, and make them parties. And, with respect to the cross-bill, the chancellor said, that though the warranty of his father did not bind Branson, yet that the covenants in the deed would bind the personal estate of the father, to answer any damages sustained by the breach of them : that Branson denied that he had received any personal assets from his father, and there was no evidence to prove that he had : that he was seeking, however, in another suit depending in this court (Borden's representatives v. Bowyer & al.) to recover a sum of money on account of the devise in the will of Benjamin Borden the elder, of certain lands to be sold, and the monies arising therefrom to be divided between his daughter Rebecca Branson and others: that the court held Mrs. Branson's share of this last mentioned subject, a chattel interest, to which her husband and his personal representatives were entitled: and that the court would, therefore, provide, that whatever of that legacy the personal representatives of Branson, the father, would have been entitled to receive, should be held liable to the indemnification of Harvey. Under the leave given, Branson amended his bill, and made several new defendants, in whose possession, it was stated, there were lands subject to his claim. These defendants answered, and much evidence was taken. The two causes were again heard, together with the case of Borden's representatives v. Bowyer, in July 1818; when the chancellor made an interlocutory decree, touching all the three causes, wherein he declared, that the great difficulty of selecting, at this day, lands to answer the devise of Benjamin Borden the elder, of 1000 acres of land to each of his daughters, and the injury which would result from it to persons, who, or those under whom they claimed, had been long in possession, rendered it proper, that the claim of Mrs. Branson's heir (the only claim not yet satisfied) should be ascertained in money, and paid out of the shares of Robert Harvey and John Bowyer, of the monies received, or to be received, for the proceeds of the lands directed by a former decree of the court to be sold; and, if that should prove insufficient, then out of their own estates, in proportion to the amounts which they or their ancestors had received for lands (of B. B. the elder) sold by them. He further decided, that the claims of all the testator B. B’s daughters, for shares of the proceeds of the lands devised to be sold, had been extinguished, except that of Mrs. Branson ; and that the claims of two of his sons Joseph and John Borden, as well as that of Mrs. Branson, remained yet unextinguished. And he appointed commissioners to ascertain the compensation to which the heir of Mrs. Bran-son was entitled for the 1000 acres of land, specifically devised to her, but never assigned to her, with directions to report &c. And other directions were given, and reports ordered, in relation to the case of Borden v. Bowyer, not material to be particularly stated here. • It appeared, that the former decree, directing lands to he sold, referred to in the above mentioned decree of July 1818, was an interlocutory decree made in the case of Borden v. Bowyer; that the lands thereby decreed to be sold, were such of the lands devised by the will of Benjamin Borden the elder, to be sold, and the proceeds divided among all his children, as then remained unsold ; that sales had been made; and that the proceeds thereof were then at the disposal of the court, or in a train of collection by Samuel Clarke, the commissioner who made them: so that the subject, which was afterwards to be disposed of, appertained to the case of Borden v. Bowyer. The commissioners appointed to ascertain the compensation due to Mrs. Branson’s heir, for the tract of 1000 acres devised to her, reported it to be 20,000 dollars; and to this report there was no exception. The other reports, relating to the case of Borden v. Bowyer, required by the decree of July 1818, were also returned ; and exceptions thereto were filed by the parties. And, in August 1820, the three causes, Branson v. Harvey and wife and others, Harvey and wife v. Branson, and Borden’s representatives &c. v. Bowyer &c. were heard together 5 when the following decree was pronounced as to them all: “ These causes came on, together, this 5th day of August 1820, to he finally heard, on the decrees herein before rendered, and on the report of the commissioners and the exceptions thereto, and were argued by counsel: Whereupon the court doth overrule all the exceptions, taken by Bowyer and Harvey and wife, to the report of commissioner Samuel Clarke made in the case of Borden’s representatives against Bowyer et al. and doth also overrule the third exception taken to said report by the plaintiff’s counsel; but doth sustain the first exception of the plaintiffs, so far as to require that the £48. 8. 8. therein mentioned, with the interest allowed thereon, should be debited to the defendant Bowyer; and doth sustain the plaintiff’s second exception, requiring that the value of the 260 acres of land therein mentioned, spoup¡ ^g brought into the account, at the price of £176. according to the estimate of the commissioners in 1804, on which sum of £ 176. interest should be calculated at die rate of six per centum per annum from the 1st November 1804 to the 1st November 1818, and the amount added to the purchase money received by Hawkins and wife, with which the defendants Haney and wife are chargeable. The report aforesaid, when reformed on these principles, will shew the following results: that the whole fund, proceeding from the sale of lands distributable under dre will of Benjamin Borden die elder, calculated up to 1st November 1818, is 75,524 dollars 73 cents; of which the plaintiffs, the representatives of Joseph Borden, are entided to one ninth, equal to 8,391 dollars 63 cents, and the defendant John Borden to one other ninth; and of which the defendants Haney and wife are entided to three ninths, and a moiety of the ninth which would have belonged to the representatives of Branson, equal to 29,370 dollars 72 cents, and the defendant Bowyer to the like amount; that, deducting from the sum aforesaid, to which the said Haney and wife were entitled, the amount which has been received by them and the said Hawkins and wife, to wit, 8,140 dollars 80 cents, stated on the 23d page of the commissioner’s report, and 996 dollars on account of the aforesaid 260 acres of land, equal in the whole to 9,136 dollars 83 cents, there would remain due to the said Haney and wife, of the fund aforesaid, a balance of 20,233 dollars 92 cents; and that deducting from the said Bowyer's portion of tire fund aforesaid, what has been received thereof by his testator, drat is to say, 17,759 dollars 57 cents, stated on the said 23d page of the commissioner’s report, and 352 dollars, the principal and interest of the aforesaid £48. 8. 8. equal in the whole to 18,111 dollars 94 cents, there would remain due of the fund aforesaid, to said Bowyer 11,258 dollars 78 cents. The said report, thus reformed, the court approves and confirms. The court, having heretofore decided, in the case of Branson v. Harvey and others, that the plaintiff must be compensated for the 1000 acres of land to which he was entitled, by the value thereof in money, to bo paid out of that portion of the fund aforesaid to which the defendants Harvey and wife and Bowyer were entitled, and commissioners appointed for that purpose having ascertained and reported to this court, in the year 1818, that the value of said land was 20,000 dollars, which report is approved and confirmed, there must be now appropriated to the said Branson, out of the balances above stated to be due to the said Harvey and wife and Bowyer, the said sum of 20,000 dollars; which being deducted in moieties, from the said balances, will leave due to the said Harvey and wife the sum of 10,233 dollars 92 cents, and to the said Bowyer the sum of 1,258 dollars 78 cents. (The several results herein stated will appear more distinctly by reference to a statement made and signed by the plaintiff’s counsel, marked A. B. filed among the papers, and approved by the court.) The court doth, therefore, adjudge, order and decree, that commissioner Samuel Clarke, to whom hath been entrusted the management of the fund aforesaid, under the direction of the court, do proceed, without delay, to collect the same with such additions as shall have been made thereto since the 1st November 1818, as the respective sums loaned out, or payable for the original purchase money, shall fall due, after retaining his commissions thereon, and paying therefrom the costs yet unpaid which have been expended, as well by the plaintiffs and the defendants Harvey and wife and Boivyer, in the original suit of Borden v. Bowyer, as by the plaintiffs and defendants in the original and cross-suits of Branson v. Harvey and wife, and Harvey and wife v. Branson and others: that he do pay unto the plaintiffs the representatives of Joseph Borden deceased, their agent or attorney, the aforesaid sum of 8,391 dollars 63 cents, with six per centum per annum interest thereon from the 1st November 1818 till paid: that he pay unto the defendant John Borden, his agent or attorney, a like sum with like interest: that he pay unto the representatives of Rebecca Branson deceased, their agent or attorney, the sum of 20,000 dollars, with like interest from the same period till paid: that he pay unto the aforesaid Robert Harvey and wife, the aforesaid sum of 10,233 dollars 92 cents, with like interest from the same period till paid: and that he do pay unto the aforesaid John Bowyer, the said sum of 1,258 dollars 78 cents, with like interest from the same period till paid. If the fund aforesaid should be inadequate to the payment of the said several sums, then the sums decreed to the said Joseph Borden’s representatives, John Borden, Harvey and wife and John Bowyer are to abate in the following manner; one-ninth of the deficiency is to be deducted from each of the sums decreed to said Joseph Borden’s representatives and said John Borden, and the residue of the deficiency is to be deducted in equal moieties from the sums decreed to said Harvey and wife and Bowyer. If the said fund should be more than adequate to pay the said several sums, then the surplus shall be paid as followeth, one-ninth to said Joseph Borden’s representatives, one-ninth to John Borden, and the residue in equal moieties to said Harvey and wife and Bowyer. It is further adjudged, ordered and decreed, that the agency of said Samuel Clarke in the sale of lands yet remaining unsold, continue as heretofore, and that he proceed to make sales thereof, in such manner as he may judge most conducive to the interest of the parties; and after retaining his commission, and the proper costs and charges of the sales; that he distribute the proceeds thereof, in the same manner as the surplus of the fund aforesaid is directed by this decree to be distributed. Leave is, however, reserved to the parties aforesaid, at any time whatever, to apply to this court, to supersede the appointment of said Clarke as commissioner to make sales as aforesaid, or to appoint any commissioner or commissioners to act with or to succeed him, or to have the said unsold lands divided amongst the parties aforesaid in the foregoing proportions. If it should so turn out that one-ninth part of the unsold lands aforesaid, should be more than sufficient to remunerate the said Harvey and wife and Bowyer, for the balance of the 20,000 dollars with interest decreed to the representatives of Branson, after deducting therefrom the said Branson’s one-ninth of the fund aforesaid which has been assigned by this decree to the said Harvey and wife and Bowyer, then the surplus of the said one-ninth of the unsold lands shall go and be paid to the said representatives of Branson. It is further adjudged, ordered and decreed, that the bill of the plaintiffs be dismissed (but without costs) as to the defendants whose lands were surveyed and laid off, on the supposition that they were subject to the devise of a thousand acres in the will of Benjamin, Borden the elder.” In April 1824, Harvey and wife presented a petition to the chancellor praying an appeal from the above decree of December 1820, as to the two suits between them and Branson, which he denied; and, in July 1824, they presented a petition for an appeal to a judge of this court, by whom it was allowed. And the cause being now called for hearing,