ed to secure to Brogden a debt, which although greater than Walker might have admitted, was trifling in comparison of the value of the property conveyed, and to put it out of the power of the grantor to squander his estate, and become a prey to designing men. Here then was a resulting trust, or here there was an equity of redemption, or here was a silly, intemperate young man, who really did not know what he was about, and who therefore ought to have the protection of a tribunal, whose peculiar duty it is to watch over ideots, lunatics, madmen and fools.

The defendant having originally conveyed the land to his brother, from whom Walker derived it, most probably thought it justifiable for him to secure a return of it as soon as the miserable days of Walker should be ended. Let it be supposed that Walker was actually apprised of the pur-, port of the deeds prepared by Brogden's attorney, as is contended by Brogden-what man of intelligence is there, that will not say that it was sufficient for him to have an ample security for his debt, and to screen his nephew from all imposition which might be attempted by others? Who is there that would say if Walker was of sound disposing mind when he made his will, that his will ought not to prevail? And if he was not of sound disposing mind, why was not his will contested?

It has been urged, on the part of the defendant, that the complainants are not creditors; that is to say, it is supposed, that not having paid a valuable consideration for Walker's property, they have no claim which ought to be regarded by this court against the legal title vested in Brogden by the deeds. No! if Walker, during his life, was entitled to relief, his representatives, on every sound principle, are also entitled. When has it ever been decided, by this or any other tribunal, that relief, which might have been obtained by a complainant who has died, shall not be granted to his representatives, reviving the suit? Or, even that a representative instituting an original suit, shall not have the same relief which would have been granted to his ancestor, devisor. testator, &c.

The chancellor repeats, that the decree he is about to make is not grounded on a conviction that fraud was per.. petrated by the defendant. He is clearly of opinion, that the complainants are entitled to a decree in their favour on other substantial grounds. Decreed, that if the executor

complainant, shall bring into court on or before, &c. to be paid to the defendant, the sum of £250, with interest from the 17th of June 1801, the defendant, by a good deed, acknowledged and recorded according to law, shall convey, &c. to the executor complainant, all the negroes, &c. And if the devisees complainants, or either of them, shall on or before, &c. bring into court the like sum of £250, with interest as aforesaid, to be paid as aforesaid, the defendant, by a good deed, &c. shall, give, grant, &c. unto the devisees complainants, and their heirs, as tenants in common, to have and to hold to them, and their heirs, to the use or uses mentioned in the last will of the said Walker, the land, on the said 17th of June 1801 by the said Walker conveyed unto the said Brogden, being parts of two tracts, &c. But if the said complainants shall fail to bring into this court the money hereby directed to be brought in on or before, &c. there shall be sold, for the payment to the defendant of the said two sums amounting to £500, with interest, &c. so much of the aforesaid personal property and .land as shall be necessary; the personal property being first And N. B. is hereby appointed trustee for making the said sale; and the course and manner of bis proceedings shall be as follows, &c. The defendant appealed to this court.

The cause was argued before PaLK, BUCHANAN, NICHOLSON and GANTT, J.

Ridgely, Key, Shaaff and Taney, for the Appellant, contended-1. That the bill is no evidence in the case; it is the allegation of the party in the language of counsel,

not sworn to.

2. The answer denies expressly all fraud; and there is not such proof against the denial of fraud in the answer, as by the law and usage of the court of chancery entitles the appellees to a decree. Wakelin vs. Walthal, 2 Chan. Ca. 8. Company of Pewterers vs. Governor of Christ's Hospital, 1 Vern. 161. Walton vs. Hobbs, 2 Atk. 18. Speed vs. Martin, 2 Com. Rep. 588. Robinson vs. Cuming, 1 Atk. 473; and Man vs. Ward, 2 Atk. 228.

3. No witness is sworn on the part of the appellees who gives any legal, competent testimony; and neither fraud nor imposition is proved by any legal competent testimony

the whole being hearsay or declarations of Walker him

self.

4. The deeds of conveyance transfer not only a legal, but an equitable estate to the appellant, not impeachable in a court of conscience, and were fairly obtained on a proper and good consideration. Villers vs. Beaumont, 1 Vern. 101; and The King vs. The Inhabitants of Scammonden, S T. R. 474.

5. If the deeds are declared null and void, as unduly obtained, yet the appellees should not have a decree for the real estate, as in such case it is entailed property, not devisable to the appellees by will, and belongs to the appellant as heir at law and remainder-man.

Martin, Johnson (Attorney-General,) and T. Buchanan, for the Appellees, cited Clarkson vs. Hanway, 2 P. Wms. 203. heathcote vs. Paignon, 2 Bro. Chan. Ca. 167. Ardglass vs. Muschamp, 1 Vern. 237. Bennet vs. Vade, 2 Atk. 327. Chesterfield vs. Janssen, 2 Ves. 125, 155. Exel vs. Wallace, Ibid $24. Bridgman vs. Green, Ibid 2 Pow. on Cont. 144, 145, 152 to 160. Osmo roy, s P. Wms. 129. Cole vs. Gibbons, Ibid 90 Chew's Lessee us. Weems, (ante 173, note;) and Frazier's case cited in Owings vs. Reynolds, et al. at Decembe

vs.

1808.

Davis
TVS

Davis

offered in evid. nee

were not sufficunt

to warrant the ju

in finding that

a person, under

elaimed, died seized of the land for

which the jet

tent was rought,

APPEAL from a judgment of the General Court, render- Where the frets ed in an action of ejectment brought by the appellant. by the plaintiff The declaration contained a demise for a tract of land and legal evidence called Brewerton, containing 400 acres, and one for a ry tract called Linham's Search, containing 38 acres, both the pin lying in Anne-Arundel county. There was also a demise for an undivided moiety of the same lands, omitting the in opposition to 60 quantity of acres contained in each tract. The defendant, (the ancestor of the appellees,) took general defence and issue was joined. The plaintiff, at the trial at May term 1805, read in evidence a grant dated the 7th of September-1659, to John Brewer, for a tract of land called Brewerton, formerly surveyed for William Pyther, lying

year posession of

the defendant sumption of a good

The strongest pre

title, being in ta vour of the des fendant

on the west side of Chesapeake bay, on the west side of the South river, &c. containing 250 acres. He also read certain entries from the rent rolls; by one of them it appeared that a tract of land called Pytherton, was surveyed on the 20th of June 1652, for William Pyther, lying on the west side of South river, containing 250 acres, and that it was in the possession of James Saunders, for Parnall's orphans. By another entry it appeared, that the tract called Pytherton, surveyed as above mentioned, was granted to John Brewer on the 7th of September 1659, and called Brewerton, and that it was in the possession of Robert Davis. By another entry it was stated, that the tract called Brewerton was resurveyed on the 9th of November 1704, for Joseph Brewer, and contained 460 acres, and that the following alienations had taken place, viz. "250 acres. Robert Davis from William Davis and William Peacock, 12th of September, 1744. 100 acres. Solomon Weeden and wife from John Gresham, 2d of June 1744. 100 acres. John liams from Joseph Williams, 12th of January 1747. 130 acres. James Maccubbin from Ferdinando Brewer, 12th of October 1747." He also read the grant for Linham's Search, issued to John Linhum on the 12th of June 1688, and containing Also a deed from William Peacock and Wil liam Davis to Robert Davis, dated the 12th of September 1744, for Brewerton and Linham's Search.He then proved by John Welch, aged 76 years, that when he the witness was a boy in the year 1758, he was at the house of Robert Davis, who was then married to the defendant (a), and lived upon and possessed the lands for which this suit is brought; that Davis always, after his marriage with the defendant, and until his death, lived on the land and possessed the same, and after his death his wife, the defendant, lived upon and possessed the same down to this time, and still does. That he never knew or heard that any person, except Rohert Davis and his wife, possessed the land, or any part of it. from the year 1738 down to this time. That Sarah Davis, the defendant, had two sisters who, together with Sarah, were the daughters of Daniel Paine; Sarah was the eldest, married to Robert Davis as above; Frances, the second, married William Peacock, who lived with her some years, and died leaving

$8 acres.

(a) She afterwards died, and her heirs were made parties.

her a widow; that she remained a widow two or three years, and married the deponent's brother, with whom she lived two or three years, and died about the year 1750 or 1751, without issue. That Elizabeth, the third daughter, remained single several years after he first knew the family in 1738, afterwards married William Davis, brother of the above mentioned Robert Davis, by whom she had four children, one of them, the eldest, father of the lessor of the plaintiff in this cause; that she died before her husband, but when he does not recollect. That he knew nothing of the title under which Robert Davis and his wife, the defendant, held the lands for which this suit is brought, but he had often heard that Sarah Davis, and her husband, lived on her father's plantation, and when Frances above named, died, she expressed a wish to be buried alongside of her father, and was carried to Robert Davis's plantation, the lands for which this suit is brought, and there buried; that Frances Peacock, above named, when she married the brother of the deponent, was more than twenty-one years of age. The plaintiff then offered in evidence, by cross examining William Brewer, a witness produced and sworn by the defendant, that he the witness. was aged about 73 years; that he had been acquainted with the three daughters of Daniel Paine above named, ever since he was six years old; that Paine had two other daughters, Priscilla, who married and left no issue now living, the other Ann who died young and unmarried. That he understood Elizabeth was the youngest of the five daughters; that he had often heard his father say, that Daniel Paine was an Englishman, who got the land in question by his wife; that the four daughters were co-heirs, and got the land by inheritance from their mother; that he understood that Frances and Elizabeth lived in Calvert county with a Mrs. Wilkerson, a relation, till Sarah Davis, her sister, married, when that happened he frequently saw Elizabeth the youngest sister at Robert Davis's, who lived upon the land, and believes she lived sometimes with her sister Davis, and sometimes with her sister Peacock, till she Elizabeth married William Davis. The plaintiff then read certain entries from the parish registers for All Hallows Parish, viz. "Mary, the daughter of James, and Sary Parnall his wife, was born the 9th day of April 1697, in the parish of All Hallows, and baptized the 25th