Read v. Long

A power of attorney from L. to R. amongst other stipulations not necessary to be noticed, was as follows: “I do ordain, authorize, nominate and appoint James Read, my trae and lawful attorney, for me and in my name, to act and procure for his own use whatever lands I may he entitled to for my services three years in the continental service, &c.” And “that the said James Read now have by these presents-full power, and irrevocable- authority, as fully and amply as-if I were^.personally present myself, to procure and get for himself, all such lands as I may be entitled to by law, &e.” Held: that this was a transfer to R. of all the right and interest of L. to the land warrants authorized to issue under the acts appropriating land's for the benefit of revolutionary soldiers. If an agreement be executed, and not executory, a court of equity will lend its aid to enforce it, though voluntary and without consideration. If a claim rests in covenant, or is executory, a court of equity will not enforce it unless a valuable or meritorious consideration be proved. The compensation for services of a locator in locating land, will bo charged on the land. When a parly comes into equity for relief, he will be compelled to do equity to others.

On the 19th day of July, 1828, James Read, the complainant in the court below, and appellee in this court, filed his bill in the court of chancery at Jackson, against the heirs of John Long, sen. deceased. The bill states that sometime previous to the year 1804, John Long sen. the ancestor of the defendants, was indebted to the complainant, and that it was agreed afterwards, upon settlement, to let the complainant have for what was due him, the said John Long, sen.’s claim upon the State of North Carolina for bounty lands, due in consideration of the military services of the said John Long, sen. no application having been before that time made by the said John Long, sen. or by any one for him, for a warrant; that in order to enable the plaintiff to get the benefit of his purchase, he and the said John Long, sen. fell upon the expedient of the latter’s giving a power of attorney to “draw said warrant for,himself;'” which power of attorney contains, among other provisions, the following, to wit: “ordain, authorize, nominate and appoint, James Read, of the county of Buncombe, my true and lawful attorney, for me, and in my name, to act and procure for his own use whatever lands I may be entitled. to for my services 'for three years in the continental service, &c.”' And again, “that the said James Read, now have by these presents -full power and irrevocable authority, as fully and amply as if I were personally present myself, to procure and get for himself all such lairds as I may be entitled to by law, for my services as above mentioned.” Which power of attorney is attested by two witnesses, one of whom is still alive, and has made proof in this cause of the execution of said power of attorney. The. other subscribing witness is dead, but ample proof is made of his hand writing. Upon the back of said power of attorney, there is a certificate of the acknowledgment of its execution by the said John Long, sen. on oath, subscribed by him before two justices of the peace in North Carolina; and said two justices of the peace are certified by the clerk of the county court of that county, to have been in commission as such, at the date of said certificate, and the presiding magistrate certifies to the official character of the clerk. The hand writing of said two justices of the peace, as subscribed to said certificate of acknowledgment before them, is also proved. It appears from the proof in the cause, that between the date of said power of attorney, and the year 1809, the complainant made attempts, but ineffectually, to obtain from the secretary’s office of North Carolina, the warrant due for the services of the said _ _ ' . , ,, , , . John .Long, sen. and about the latter end of that time, removed from North Carolina to the western country, bringing said power of attorney with him. The proof in the cause shows that after the execution of said power of attorney, the complainant was advised that it was necessary, in order to give him a perfect right to said warrant, free from the control of the said John Long, sen. that the word “irrevocable,” should be inserted in it, and it was so inserted by the consent of the said John Long, sen. and acknowledged by him, with the alteration made. One of the defendants, Mrs. Dillingham, who is an heir of the said John Long, sen. in her answer, admits from information and belief the execution of said power of attorney, and that the object of it was as the complainant states in his bill. The other heirs of the said John Long, sen. do not admit the execution of said power of attorney, or if executed, that it was intended for said Read’s benefit, and deny that it was upon a valuable consideration, and put the complainant upon proof of his case. They do not, however, pretend to a personal knowledge of the transaction, nor do they deny the allegations of the bill upon the subject, otherwise than as already stated. The power of attorney itself states, “that for divers goods causes and considerations,” the said John Long, sen. executed the same to said James Read. All the defendants, except Mrs. Dillingham, rely much upon the fact that in 1819, John Long, sen. made a contract with Robert Henry and Robert H. Burton to give them half the land warrants, for procuring the same to be issued, and upon the additional fact, that in 1822, when said John Long, sen. died, he made his will by which he acknowledged the said sale of one half of said warrant to the said Henry and Burton, and devised the residue to said John Long, jun. Alter the cause was brought to a hearing, as between the complainant and the heirs of John Long, sen. there having been no other defendants to the bill, the chancellor ° permitted the said Robert Henry and Robert Burton, upon their application, although the same was opposed by the complainant, to be made defendants, and remanded the cause to the rules to be proceeded in for that purpose, and afterwards the cause was brought to a hearing against all the defendants, including the original ones, and the said Henry and Burton. The said Henry and Burton adduced no proof whatever, either concerning the contract between John Long, sen. and James Read, or of the contract between John Long, sen. and themselves, or of their being purchasers without notice of the claim of the complainant. The allegations in the bill and the case stated therein, are made out by proofs, showing the execution of said power of attorney. The warrant was issued on the 4th day of August, 1820, in the name of John Long, sen. The entry was surveyed on the 19th day of April, 1821, and on the 28th day of August, 1822, a grant founded thereon, was issued to the heirs of John Long, sen. deceased. The chancellor decreed the land to the complainant, excepting the locator’s part, being one fifth. He also decreed the whole costs against the complainants, and one hundred dollars besides, as a charge upon the land, to satisfy Henry and Burton for their aid and assistance in procuring the warrant to issue to John Long, sen. and for payment of their expenses in procuring the warrant to be located and entered, from which the defendants appealed to this court. 1st. The power of attorney, containing the provisions which it does, that is, authorizing the complainant to draw the warrant for his “own use,” “for himself,” according to the varied phraseology in different parts, operated as an actual assignment, or transfer, by John Long, sen. of the warrant to the complainant. It is an executed contract, and not an executory one. After the execution of the power of attorney, nothing rested in covenant or agreement be'tween these parties. Long was not liable to be sued for not doing any thing which he had contracted to do. And had Read obtained the warrant, in pursuance of the power of attorney, he could not have been liable to the action of Long, either for the recovery of it, or of its value, because he was expressly authorized to procure it for his own use. But if after having procured it, Long had obtained possession of it without his consent, and had appropriated it, he might have brought his special action on the case against Long, and have recovered damages equal to the value of the warrant. So also, after executing the power of attorney, if Read was prevented from drawing the warrant “for his own use,” by Long’s drawing it himself, the former could maintain his action. 2 Mason, 244. , This, therefore, is not a bill for a specific perfoimanee; for that can only be when the contract is executory. But Long having possessed himself of the legal title to the land by resuming the warrant which he had previously conveyed to Read, is to be constituted a trustee for Read of the proceeds of the warrant. This is the true character of the bill. The argument for the defendant is, that this is a bill for a specific performance, that the contract is a voluntary -one, and that a court of equity will not lend its aid to the enforcement of such a contract. This argument is founded upon an assumption throughout: that it is not a bill of that description, has already been shown. And it is admitted, by the complainant’s counsel, that a court of equity will not constitute the relation of trustee and ■cestui que trust upon a voluntary contract that is merely executory, though it is contended at the same time, that if the contract be an executed one, although voluntary, a court of equity will give it effect, equally as if it had been founded upon a consideration 6 Vesey, 662, El-lisonvs. Ellison: 1 Vesey, 54: 1 Johnson’s Ch. Rep. 337, Í56: 3 P. Wm>. iL _ _ But the contract, in addition to its being an executed one, actually conveying the land warrant, is denied to be a voluntary one. What is the proof upon that subject? upon which party does the burthen of making that proof, rest? It is alleged by the defendant to be a voluntary contract, as matter in avoidance. The truth of that allegation, as well as every other contained in the answer, is denied by the replication. Now is it not incumbent on the defendants to establish by proof, their matter in avoidance ? And when the truth of that matter is denied by the plaintiff in the pleadings, is he still bound to prove it not true, or submit to the alternative of having it taken as true? Certainly not. And yet precisely such premises do the defendants assume. The defendants rely for proof of its being a voluntary contract upon the fact of the contract between Burton and Henry, of the one part, and John Long, sen. of the other part, made in 1819, by which he agreed to give them half the warrant for obtaining it; and upon the further fact, that by his will, he recognized that contract. Suppose John Long, sen. were alive and now before the court, instead of his heirs. What kind of an argument would that be in his mouth? That he had done an act in violation of his contract for the sake of gain to himself, intended and calculated to defeat its effect in behalf of the other party. That he had gained an un-conscientious advantage at law, by doing an act in fraud of his own assignment; and that he not only ought not to be stripped of it, but that the act itself ought to be construed into evidence, by which to sustain it! Such would be the absurdity of the ancestor’s insisting upon this ground, and his heirs stand in equali jure with him. In regard to a chattel interest, an agreement under seal, imports a consideration at law. And a voluntary bond or deed of chattel interest, will be supported in equity, w^out consideration. 1st Johnson’s Ch. Rep. 336. A land warrant is a chattel jeal. Even in cases not ap-pertahring to chattels, the effect of a seal is not to be entirely disregarded in equity. The only difference between their operation in equity and at law, is, that at law, they conclusively establish a consideration and cannot be averred against; but in equity, the want of a consideration may be shown, notwithstanding the seal, but until 'shown by the party undertaking to do it, the seal is still evidence of consideration, and is satisfactory' evidence of it, in the absence of all proof to the contrary, which is the case here. 2d. This not being a bill for a specific performance, length of time cannot be computed from the date of the power of attorney, and urged against the plaintiff’s right to a decree. The bill, as has been shown in the preceding position, is founded upon the act of Long, whereby he appropriated to himself, what he had before actually assigned to Read, and therefore, there was no necessity for a bill, nor would a bill have lain, previous to this time. The grant for the land issued within less than six years b'efore the filing of the-hill. 3d. No presumption of abandonment can be entertained against Read. As it was an executed'contract, Read had nothing more to expect of Long, and consequently, Long cannot urge that presumption in his own favor, and the State of North Carolina, from whom the warrant was to come, does not. Long lay by, acquiescing in the assignment made by the power of attorney, from 1806, the date of that instrument, till 1820, when the warrant issued, without making the least- movement towards the assertion of a right, in opposition to the assignment. All the while, he lived in North Carolina, convenient to where the warrant was to be procured, and Read had removed to the western country ten years previ ously, carrying the power of attorney with him, and for ought that was known to Long in 1820, was dead, and might never apply under the power of attorney to get the benefit the assignment thereby made of the warrant. In this state of things, Henry and Burton, having in view their own advantage, stimulated Long to assert for the first time, after the execution of said assignment, a pre-tence of right in opposition thereto. These circumstances appear to me to warrant a much stronger presumption against Long, that he considered the power of attorney as an actual transfer of the warrant to Read, than that an abandonment can be inferred from them, against Read. 4th. The strength of the proof upon the subject of the interlineation is, that the word “irrevocable,” was introduced by John Long, sen. or with his consent. But, the supply of that word, at any rate, did not alter the sense, nor tend to make the contract more for the advantage of Read, than it would have been without it. In such a case, even if the interlineation had been made by Read himself, it would not vitiate the contract. 9 Cranch, 37, Speake vs. U. States; Chitty on Contracts, 297: 5 Taunton, 707: 1 Bal and Beatty, 426: 2 Starkie on Evidence, 475, 480, notes. 5th. There is no proof whatever, not the slighest, that Henry and Burton were purchasers, without notice. 6th. As to the propriety of making Henry and Burton parties, against the will of Read. The bill, as originally formed, sought no decree against them, and a decree, as between the original parties, could have been made without affecting their rights, if any they had. One consequence of making them parties, has been a decree against Read, for their cost, although it turned out upon investigation, that they had not the shadow of a right. Suppose, after a decree for Read against Long’s heirs, Henry and Burton being no parties, and never having made any demand of Read for compensation for their services, had filed their bill; there can be but little doubt, that in that case, cost would have been decreed against Henry and Burton. That they were made de-not by the act of Read, cannot strengthen their claim to costs, nor increase his liability for them, especially when it turns out that they were not ¡aurchasers without notice. To admit them defendants, under the circumstances, relieves them from the consequences of champerty; and in some respects throws the onus of proof upon Read, when it should rest upon them. 7th. As to that provision in the decree, which decrees one hundred dollars as a charge upon the land, with which to satisfy Henry and Burton for their trouble and expense in causing the warrant to be issued and located; in the first place, there is no sufficient proof that these services were performed by them, and if performed, the compensation -was extravagantly high. But, assuming that these services were rendered, they were not performed at the request of Read, and the law raises no implied contract against Mm to pay for them. Then it can only be upon the grounds that Read holds the land as a trustee, pro tanto, for Henry-and Burton, that such a charge upon the land can be sustained, or that pecuniary compensation could be allowed. What is there to raise a trust between these parties ? Nothing but the benefit done to Read, the real owner of the warrant, in causing the same to be located’. But that benefit was intended as a fatal injury, and was an unauthorized interference with Read’s property, which subjected him to expense against his will. If the chancellor could decree a charge of one hundred dollars upon the land, what is to prevent him from decreeing a charge to the extent of the value of that land? The exercise of such a power by the chancellor, is in violation of the spirit and policy of the statute of frauds, if not of its express letter. argued at considerable length in support of the above positions. Does the seal affixed to the power, import a consideration in equity? It does at law, but it does not in equity. In 1 John. C. It. 329, all that is said by Kent, is, that “at law a seal imports a consideration;’1 and that in equity a deed will be supported without a consideration. By turning to the case, and to 4 John. C. R. 500, his meaning will be clearly understood. 2d question. If a seal does not in equity import a consideration, do the words “divers good causes and considerations,’’import it? It will be necessaryto see the import of these terms. I contend they do not import more than a good consideration, if they import any thing. A good consideration is merely voluntary. 2 Blackstone, 297. The rule in equity is, not that a voluntary agreement will not be enforced, but that it will not be, if not founded on a meritorious consideration, &c. It will not be enforced if to a stranger. Plaintiff could not by force of the words in the power, contend there was more than a good consideration thereby expressed. The facts in the case disprove that there was a meritorious consideration, shows there was no such connection between these parties, as to constitute a meritorious consideration. See Blackstone as to good and valuable consideration. The case in 1 Yesey, 54, says “wherever you come into a court of equity to raise an interest by way of trust, you must have a valuable, or at least meritorious consideration; nothing less will do.” A declaration or bill setting out “for divers good causes and considerations,” would not suffice, if necessaryto set out the consideration, as it is at law where a writing is not under seal, and in equity, when applying for specific performance. See the forms of Bills in Harrison, New-land, &c. The subject matter of the consideration must be stated and set out, that the court may ludee of it; if ashed why necessary for a consideration to be stated m the bill, the answer is, it must be valuable or meritorious, and must be stated and proved to be one or the .other. Good considerations embrace conveyances to children and to strangers. This is to a stranger,'is not meritorious, and therefore cannot be enforced. The words in the power are the common words used in powers of attorney, (2 Gradin’s Forms, pages 68 and 69,) and in fact are the peculiar words appropriated to such instruments, in gifts, for uIove and affection, ” but not to sales, for money or some valuable thing. The words, divers good causes and considerations, grow out of the common notion, that some way of expressing a consideration must be used, and in law mean nothing. Can a voluntary assignment like the present be supported in equity? It is a well known rule that a party cannot go into chancery without consideration. 3 Brown, C. 12, Coleman vs. Sorrel: Jeremy, 445: 1 Vesey, jr. 54. To protect an assignment, it must be for consideration in equity. 2 Equity Cases 85: 1 Vol. 44. If the plaintiff says, all he wishes is to stay the hands of defendants, the answer is, the authority did not authorize you to get the warrant in your own name; without any act of defendants you are compelled to come into chancery, unless they convey to you; and the question is, as it is only a covenant for a conveyance and voluntary, will the court compel a conveyance without consideration? See 6 Ve-sey, 661: 18 Vesey, 99: 1 Maddox, jr. 414. This case is distinct from a case where trustee undertakes and then refuses: a court of equity will enforce an execution. 3P. ffm. 223. A defective power for valuable consideration will be aided; if it be voluntary, it will not. 1 Mad. jr. 53: 2 P. ffm. 623. If defendants be wrong in these positions, I contend that plaintiff has not made out a case just and fair, and free from suspicion, non, 632. Jeremy, 442: 3 Atkyns, 386: 2Ver-