Dorsey Wheteroft

VS.

RUMSEY, Ch. J. The court are of opinion, that Nov. 1803 they cannot grant the writ of diminution. It does not appear to them that the record is diminished. None of the forms in the books introduce the inspected record; and if the writ were granted, the court cannot see how the record could be transmitted different from what it now is.

Suppose the action had been upon a judgment ren dered in another court. The record of the judgment is offered in evidence, but not made a part of the proceedings, unless particularly excepted to, and introduced in a bill of exceptions,

Martin (Attorney General) Ridgely, Mason and W. Dorsey, for the Appellants.

Key and Shanff, for the Appellee.

The Appellant's counsel dismissed the appeal.

COURT OF APPEALS, NOV. TERM, 1803.

TODD et ux. vs. PRATT.

APPEAL from a decree of the court of chancery.

The court of chancery will not

The bill stated. that Rachel Baynard. the complainant in an injunc the court of chancery, who afterwards married Wil

con

101

and

tion to stay proeeedings 011 a

judgment in an

action of eject

for lands mortgaged, he fore

ejectment has and heard

been summoned

A tenant in tail may by a mortBge of the en

fedlands, dock

the estate tail, and

convey the lands

i fee, subject to

be avoided on the

payment of the mortgage money by him.

liam Todd, (the now appellants.) in September 1796, ment by her bill set forth, that George Baynard, deceased, the plaintif in on the 24th of October 1787, mortgaged to Pratt, the defendant, part of a tract of land called Relief, taining 576 acres, Baynard's Pasture containing acres, part of Roe's Chance containing 97 acres, sundry negroes, in consideration of £733 current money. That George Baynard, on the 1st of June 1793, made a second mortgage to Pratt of the said lands and premises, and negroes, in consideration of 1016 118 4d current money. That both the said sums were not due; that there had been dealings between Baynard & Pratt, and that Baynard was indebted to Pratt, but not to the amount expressed in the said mortgages. That payments had been made, and no credit given; and 25 per cent. interest had been charged, &c. That Baynard died before the expira

tion of the day of payment in the last mortgage, intestate, and without issue, leaving the said Rachel, his sister, and heir at law. That Pratt had brought an ejectment, and recovered judgment for the lands in the said mortgages, also replevin for the negroes, which is depending in the eastern shore general court. Prayer, that Pratt be compelled to account, &c. and upon payment of the sum due, be compelled to reconvey the lands, &c. to the said Rachel, and that injunction issue, &c.

HANSON, Chancellor, (September 16th, 1796,) passed the following order:

The bill states a mortgage or mortgages of land and negroes, duly executed, to secure to the defendant the payment of certain sums of money, and that the defendant has instituted an action of replevin for the negroes, and obtained judgment in an ejectment brought for the land. It prays an injunction to prevent him from further proceedings at law, on the ground that the money, or great part of it, for which the mortgage was given, is not due to the mortgagee. Supposing the act of George II. to have been introduced, used, and practised under in this state, the complainant, with respect to the land, had her remedy at law, she might have brought into the general court the money due, an account of which would have been taken under the authority of that court. Supposing that statute not to have been extended to this state, where is the case which will authorise this court to enjoin the mortgagee before hearing from taking an execution on his judgment at law? The very preamble of the said statute recites, that courts of equity grant no relief before hearing; and although this court may have gone further than the courts of equity in England, and further than is proper in granting injunctions before hearing, there has been no case in which it has gone so far as it is prayed to go in the present case. Independently of this consideration, the chancellor conceives it unreasonable, under the circumstances stated in the bill, to interfere with the

proceedings at law. Why did the complainant delay her application to this court, when a bill filed here. in due time for redemption, if she has accurately stated every fact relative to her case, might have effectually prevented any inconvenience of which she complains? Upon the whole, the chancellor is of opinion that he cannot, with propriety, grant the injunction prayed, or any other relief, before the defendant shall have been summoned and heard.

The defendant afterwards answered, that he had taken the mortgages, and had recovered judgment for the land, and had replevied the negroes, but only with a view to compel payment of the money due him. And he stated how the sums of money in the mortgages became due to him, and exhibited his accounts, &c.

Upon the marriage of the said Rachel with William Todd, the suit abated, and a bill of revivor was filed by Todd and Wife against Pratt, who appeared, &c. Upon a general replication being entered to the answer, the auditor was directed to state the accounts, &c. who did state two accounts, one of which stated that 1591 58 1d current money, including interest, was due on the 20th May 1801, on the mortgages; and the other, that 16271 5s 3d current money, including a balance due on an open account, was due on the same day, including interest, &c. deducting the amount of the sales of the negroes made in virtue of an interlocutory decree of the court of chancery.

Key, for the Complainants, objected to a decree confirming the report of the auditor, so far as the same should affect the tract of land called Relief.

1. Because that tract was originally the estate of Thomas Baynard, who was seised thereof in fee, and by his last will and testament entailed it on his son George, from whom it descended to his son George, the mortgagor, in tail."

2. That the said entail had never been barred or docked either by George, the devisec, or George, the mortgagor; and that the mortgage did not bar or dock the entail.

3. That the complainant, Rachel, is heir in tail of the said tract of land.

4. That the knowledge of this entail did not come to either of the complainants until since their intermarriage and the reference of the accounts to the auditor.

HANSON, Chancellor, (October 1801,) passed the following decree: The chancellor has considered the complainants' exceptions; and the same are disallowed. There can, he conceives, be no doubt, that if tenant in tail can give an absolute conveyance in fee under the act of assembly, as tenant in fee, he may also give a conveyance in fee, subject to be avoided on the future payment of money by the said tenant; or, in other words, that tenant in tail may mortgage his land. Could the chancellor conceive the point at all doubtful, he would require the opinion of the general court.

It is the auditor's account. No. 2, which the chancellor hereby ratifies, and he conceives the complainants are not entitled to redeem, without paying the balance therein stated, of 16271 58 3d, with interest from the 20th of May last, when the account was stated." And in conformity with the agreement of the parties, and the decision of the chancellor, he decreed accordingly. From which decree the complainants appealed to this court.

Key and Johnson, for the Appellants.

Martin, (Attorney General,) for the Appellee.

THE COURT OF APPEALS, at this term, affirmed the decree of the Court of Chancery.

COURT OF CHANCERY, DEC. TERM, 1805.

TYSON et al. vs. HOLLINGSWORTH et al.

DEC 1803

Tyson

VS

Hollingsworth

deficiency of as

Where there is a

sets in the hands

of

in executor or

administrator, the

will decree a sale

of the real estate

devolving on the heir, &c. of full age.

THIS was a bill filed by the creditors of Parkin and M.Kenna against Parkin's heir, devisee and adminis trator, and M.Kenna's executor. The bill stated, court of chancery amongst other things, that Parkin and M Kenna, hav. ing been partners in trade, were both dead, and that their par nership effects and personal estate were insufficient to pay off and discharge their debts, and that the whole of the said partnership effects, and their personal estate, had been exhausted in the payment of their debts, and there remained due and owing from their estate to the complainants, a considerable sum of money. That Parkin, at the time of his death, was seised and possessed in fee simple of a valuable real estate. That M.Kenna was not seised or possessed at the time of his death of any real estate. That Parkin devised his real estate to his mother Rachel Hollingsworth, the wife of Jesse, one of the defendants, in fee. That the complainants have no means of obtaining payment of their debts without resorting to a sale of the said real estate of Parkin, which they are advised is liable for the payment of said debts. Prayer, that the said real estate, or so much, &c. may be decreed to be sold to pay the debts due to the complainants, &c.

On the coming in of the answers, &c.

HANSON, Chancellor, (23d December 1803,) decreed as follows: Whether or not, in case of a deficiency of assets in the hands of the executor or administrator, this court can decree a sale of a real estate devolving on a person of full age, hath heretofore been considered as doubtful. In fact, there has been no such decree in this court. And in one case where creditors, several years since, filed a bill against the heir of full age, who by his answer expressed his willingness to have the land sold for paying all the creditors, the chancellor refused to execute the power. He hath since of