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paid to John Hudgin, the executor, the whole amount of the purchase money in June, 1803, and received a deed from the commissioners. In 1816, John Hudgin and Polly, his wife, who was the daughter of William Soper, and John Soper, a son of the deceased, recovered a judgment in ejectment against Jesse Hudgin for two undivided third parts of the land conveyed to him as above stated. Jesse Hudgin thereupon obtained an injunction to this judgment. In his bill he claimed that he was entitled to be substituted to the rights of Armstead as a creditor of the estate of William Soper, deceased. He charged that he had made valuable improvements upon the land. Having made the heirs and devisees of William Soper, defendants, he prayed to be quieted in the possession of the land purchased by him as aforesaid, or that Armstead and John Hudgin might be decreed to pay him the sums received by them as aforesaid. John Soper, and John Hudgin and wife, and Armstead, answered the bill, and various proceedings were had in the case at different dates until in 1840 the cause came on finally to be heard, when the court sustained the plaintiff's exceptions to the account of the rents referred to in the opinion, and dissolved the injunction and dismissed the bill with costs. Jesse Hudgin thereupon applied to this court for an appeal, which was allowed. The other facts sufficiently appear from the opinion.

Harrism, for the appellant.

Mason, for Armstead.

By Court, ALLEN, J. The court is of opinion that, as the children and devisees of William Soper, deceased, were not parties to the chancery suit instituted in the county court of Matthews, by Francis Armstead against John Hudgin, executor of the said William Soper, deceased, for the establishment and recovery of the debt claimed to be due from the said William Soper, and to charge the same on the realty in the event of there being no personal assets, the children and devisees are not bound by the decree directing a sale of the land devised; and that the sale and confirmation thereof, and the deed of the commissioners to the purchaser, did not operate so as to pass the legal title. The court is therefore of opinion that there is no error in so much of the decree appealed from as dissolved the injunction to the judgment recovered in the action of ejectment in the bill and proceedings mentioned.

The court is further of opinion, that as the will of the said

William Soper charged all the estate devised with the payment of his debts, and as it appears from the report of the commissioner that the whole of the personal assets had been exhausted, leaving unsatisfied the debt due to said Francis Armstead, his debt, when established as against the devisees, would have been a charge on said real estate: and the same having been paid by the purchaser of said real estate, who purchased under said decree in good faith, and with the expectation of thereby acquiring a good title to said estate, the purchaser, in the event which has happened, of a disaffirmance of said sale, is entitled to be substituted to the rights of the said Armstead, and to charge said estate with the amount of said debt so paid by him.

The court is further of opinion, that in this cause, and as between these parties, the said Francis Armstead was, under the circumstances, a competent witness to prove the validity of his debt. He was under no responsibility to the purchaser at the sale, because he entered into no covenants binding him for the sufficiency of the title; and it was as much the duty of the purchaser as of the creditor to look to the regularity of the proceedings. And there being no fraud charged or imputed to him, the purchaser in no event could look to him for indemnity; in such case, he purchases at his own risk. Nor could said Armstead be held responsible in any event to the executor of William Soper; for, as against him, the validity of his debt, and his right to receive payment, were established by the decree. Nor was he liable to the devisees; for, as to them, the proceeding was merely void, and did not prevent them from asserting their legal title and recovering the land. And the court is further of opinion, that by the testimony of John Patterson, and the evidence of said Armstead before the commissioner, taken in connection with the other circumstances of the case, irrespective of the decree of the county court, it appears that the debt due to said Armstead amounted to two hundred and eight pounds ten shillings eleven and three fourths pence, for which sum, with interest thereon from the first day of June, 1798, until payment, said land in the hands of the devisees is chargeable on account of the debt due said Armstead. And it furthermore appearing that the purchaser, after discharging the debt, interest, and costs due to said Armstead, paid over to the said John Hudgin, as executor of said William Soper, the balance of the purchase money, in pursuance of said decree; and the report of the commissioner, showing that upon a settlement of the executor's accounts there was a balance due to him of twenty.

eight pounds eight shillings three and one half pence, which was satisfied by an application of so much of the purchase money of said land, the purchaser has a right to be substituted to the rights of the executor, and charge the land with that sum, with interest thereon from the sixteenth of June, 1798, until paid. And for the residue of the purchase money he would have had a right, had not the same been waived, to call on said executor to refund; it not appearing by the commissioner's report that the executor has disbursed the same in payment of debts or to the legatees.

The court is further of opinion, that in ascertaining the amount, for which the purchaser is entitled to charge the land devised, his claim should be credited with the amount of the rents and profits, as ascertained by the report of the commissioner, made out in the cause, and to be continued from that time; and that for the residue of the sums, two hundred and eight pounds ten shillings eleven and three fourths pence, and twenty-eight pounds eight shillings three and one half pence, with interest as aforesaid, which may remain after crediting the rents and profits as ascertained by said report, and continued from that time, the appellant is entitled to a decree declaring the same to be a charge on the land, and providing that unless the same should be paid by the devisees within a reasonable time, that said land be sold for the satisfaction thereof, on terms to be prescribed for the purpose.

It is therefore adjudged, ordered, and decreed, that so much of said decree as conflicts with the principles herein declared be reversed, with costs to appellants; and that the residue be affirmed. And the cause is remanded to be further proceeded in according to the principles of this opinion, in order to a final decree.

CABELL, P., and BROOKE, J., absent.

ADMINISTRATOR WHO DISCHARGES DEBTS OF HIS INTESTATE to an amount exceeding the personal assets may have equitable relief against the heirs, and be reimbursed out of the real estate which has descended to them: Taylor v. Taylor, 48 Am. Dec. 400.

RIGHTS OF PURCHASERS AT VOID SALES, where the money paid by them has been applied to pay off debts or claims: See note to Scott v. Dunn, 30 Am. Dec. 177, where this subject is discussed at length.

JUDGMENT OR DECREE BINDS ONLY PARTIES TO THE SUIT: See Hunter v. Hatton, 45 Am. Dec. 117, note 126, where other cases are collected; Shulze's Appeal, 44 Id. 126, note 129.

THE PRINCIPAL CASE IS CITED in Sands v. Lynham, 27 Gratt. 291, 301; S. C., 21 Am. Rep. 348, to the point that a person is not affected by orders or decrees in a suit to which he is not a party; and in Bishop v. O'Conner, 69 Ill. 439, to the point that a purchaser from an executor, whose money was used to pay off debts of the testator, is entitled to be treated as the assignee of the creditors, as against the heirs.

POLLARD v. LUMPKIN.

[6 GRATTAN, 898.]

AWARD MADE IN PURSUANCE OF SUBMISSION, final in its character, completed by the signature of the arbitrators, published to the parties, and ready for delivery, is complete and final, and the authority of the arbitrators is then ended.

EVIDENCE THAT ONE OF TWO ARBITRATORS, AFTER HIS AUTHORITY HAD CEASED, upon reflection, came to the conclusion that the principles by which he was governed should have led him to a different result, is not sufficient, of itself, to set aside the award on the ground of alleged mistake, where such mistake does not appear on the face of the award, or from any paper or document connected with or referred to in it, and all mistake is denied by the other arbitrator.

BILL to set aside an award. The facts sufficiently appear from the opinion.

Young and Robinson, for the appellant.

Daniel and Lyons, for the appellee.

By Court, ALLEN, J. The court is of opinion that the award of the arbitrators in the bill and proceedings mentioned, dated the nineteenth of December, 1838, being in pursuance of the submission, and being final in its character, and being completed by the signature of the arbitrators, published to the parties, and ready for delivery, the award was complete and final, and the authority of the arbitrators was at an end. The court is further of opinion there was no mistake or misapprehension on the part of the arbitrators, or either of them, as to the nature or contents of the award, when the same was signed and published as their final act; and though one of the arbitrators, after the termination of his authority, may upon reflection have supposed that the principles by which he was governed should have led him to a different result, such evidence is not of itself sufficient to set aside the award upon the ground of alleged mistake; it not appearing on the face of the award, or from some paper or document connected with or referred to by the award; and all mistake being denied by the other arbitrator. The court is

therefore of opinion that the decree of the circuit court is erroneous; and the same is reversed with costs to the appellant. And this court proceeding to render such decree as the court below ought to have rendered, the bill is dismissed, with costs to the defendant.

Decree reversed.

CABELL, P., and BROOKE, J., absent.

CONCLUSIVENESS OF AWARD: See Stewart v. Cass, 42 Am. Dec. 534, note 37, where other cases are collected.

LYONS V. MILLER.

[6 GRATTAN, 427.]

ANSWER TO BILL OF DISCOVERY IS TREATED AS EVIDENCE, and, if used at all, the whole of it is to be read as the testimony of a witness, but it may be disproved or discredited in the same way as the testimony of any other witness.

WHERE PARTY COMES INTO EQUITY FOR DISCOVERY, the court will retain the cause, and give the proper relief founded on the discovery, unless the discovery is sought for the purpose of using it in a pending action at law.

ONE WHO, FOR VALUE, TRANSFERS NEGOTIABLE NOTE WITHOUT INDORSEMENT, thereby guarantees the genuineness of the instrument, but not the solvency of the parties thereto.

BILL for discovery and relief. The facts are sufficiently stated in the opinion.

Stanard and Macfarland, for the appellant.

Cooke, for the appellee.

By Court, BALDWIN, J. The force and effect of the defendant's answer in this case is to be determined, not by treating it as matter of pleading, but as matter of evidence. When a plaintiff comes into a court of equity, in order to obtain redress in that forum, upon a subject falling within its equitable jurisdiction, the facts charged in the bill and admitted in the answer are to be taken as true, because conceded in pleading. But if the answer goes further, and sets up other facts in avoidance of what has been so admitted, those facts must be established by evidence. And in these respects the rules of law and equity are the same. But equity goes a step beyond the law, and requires that an allegation in the bill which is denied in the answer, shall be proved by two witnesses, or one witness and strong corroborating circumstances, and hence the responsive answer is

AM. DEC. VOL. LII-9

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