IN EQUITY.

#### Jones & others, v. Zollicoffer.

From Halifax.

a testator, by Ms will, gave to Ms wife the ose of certain slaves for her life, and after her death the slaves were directed to be divide d among testator's children ; the wife and one of the testator's children were made executors ; the wife took the property as legatee, and íes be? own benefit, sold one of the slaves, and three of the children joined in the conveyance with her ; the rest of die legatees filed a bill in 1794, against the purchaser under the widow, nod the Court disimsc-ed the bill, in 1811, on a bit! of review filed, the then cupreine Court reversed lite decree, dismissing the bill, and oa a claim new set up by the purchaser to be substituted. to the rights of his vendors, to ouch share as they would be entitled to in the other parts of testator’s estate, it was held, that where one claimant has two funds, and another but one of them to which he can resort, then if a selection be made by him, having access to both, of that fund to vthich alone the other lias access, and. such salootioii be dictated by ¡nieve caprice, Equity will restrain it, and confine the Claimant to tise fund not. onerated by the claims of ¡be other ; hut if convent ■'¡ice, ;• ca\ not caprice, dictate the selection, the most that Equity does is to substitute ; sad in die case staled, if the propel¡.y were of such nature that value alone is to be ipgarded, so that the Court might see that fraud or caprice induced Complainant-; to pursue die properly in Defendant’s possession, the Court might interiors ,- hut with slaves, towards whom an attachment may evict regardless of their real value, the case is different, and. the Court will not interfere; because a person who had right in common with another to aparecí of slaves, might be actuated by other motives than mere caprice, or fraud, who refused to validate a sale made, in severally by his -;o • partner of some favourite slaves.

Held, further, that in this case, the double fund was lost without any default of the complainants, and by a, decree oía Court of Supreme jurisdiction, and therefore, the Court would not presume ill'll th“t Complainants fraudulently abandoned that fund, with an intent capriciously to pursue, by a bill of review, the slaves in the Il.-fiei. dant’s possession.

field, further, that the accumulated rights of Defendant's vendor-, oir the death of some of tne children of the father, the testator, enured, io the benefit of the Defendant, whether suds, chiCi'en died ha.!‘r'" . or since the sale to him.

*624In 1794, the Complainants, as legatees and next of kin to William Jones, who died in 1758, filed a bill against Zollicoffer and others, and set forth, that by the will of ^ Jones, the use of certain slaves named therein, was given to his wife, Sarah Jones, for life, and testator, by his will, directed that after his wife’s death, the slaves should be divided, by bis executors, among his children, and made his wife and his son William, (one of the Complainant’s,) executors; that the wife died in 1793, and that Zollicoffer had possession of some of the slaves, under a purchase for a small price, and with notice of the childrens claim; that the wife had elected to hold as legatee, and that all the debts had been paid before the sale to Zollicoffer. The bill prayed that the slaves might be surrendered, and Defendant decreed to ac> count for their profits.

Zollicoffer, by his answer, admitted the purchase of a negro named Beck, from the widow and from Brittain and Elizabeth Jones, two of the children, and from Perry, who married, another of the children, who assured him that they could or would make good title to her.

A Jury found, on an issue submitted to them, that Zollicoffer had purchased Beck, for a valuable consideration, without notice, and that the sale was justifiable. The bill, as to Zollicoffer, was then dismissed.

A bill of review was afterwards filed, and in October, 1811, the then Supreme Court reversed the decree, dismissing the bill as to Zollicoffer. — (N. C. Term. R. 212.) At the last term of this Court, the cause being here pending, the Court ordered certain issues to bo submitted to a Jury, and they found that at the time of the sale to Zollicoffer, Sarah Jones, the widow, held the- property as legatee, and not as executrix, and that she sold the negro Beck, for her own benefit. Whereupon, the Court referred it to the Clerk and Master, to take an account of the number of the negroes mentioned in the biff, and their increase, their value,'hire, expense of rearing and *625other expenditures relativo to the said slaves, together with the proportionate shares of the respective claimants.

And at this term, the Clerk and Master, reported that George Zollicoffer obtained posssession of Beck, in the ¿ear 1774, by a conveyance from Sarah Jones, Brittain Jones, William Perry and Elizabeth Jones, and that at Ms death, in 1815, ho liad her and her increase in his possession. That the descendants of Beck were thirty-live in number, of whom, at the time of taking the account, William E. Webb, administrator of George Zol-jicoiier, had in possession eighteen j two had been sold, and the residue, fifteen, were in the possession of James AoliicoSvr, who claimed them under a gift from his his father, George, made sometime after the 28th of June, 1807. The value of the negroes and the prolife of their hire, were reported pursuant to order.

The Clerk further reported the respective shares of the Complainants to he as follows : The Complainants, in the original bill, were William Jones, James Winters, (a purchaser from Simon Jones, one of the children of W. Jones, the elder,) .lames Carstaphen, (a purchaser from Jones Nichols, issue of Winnie, another of the children of W. Jones, the elder,) and Richard Richards, who intermarried with Elizabeth Jones.

The Defendants were Brittain Jones, Jeremiah Stephens, administrator of Simon Jones, George Zollicof-for, William Perry and Sylvia his wife. The Complainants, in the bill of review, were William Jones, John Burnell, administrator of Janies Winters, and James Carstapheu. Since the cause was transmitted to this Court, John Burnell, administrator of William Junes, Henry Jones, Brittain Jones and Jhney Westcoatp (all of whom were children of W. Jones, the elder,) was made a Complainant.

George Z oil ¡coffer’s administrator, William E. Webb, is the Defendant.

*626William Jones died in 1758, leaving tlie following children ;

1st. JVilliam, who is deed and left issue, William — Sarah, who intermarried with Jones Nichols, both dead, leaving no issue. JVUmie, who intermaried with Samuel Nichols, both dead, leaving an only child, Jones Nichols, who sold to James Carstaphen.

2d. Brittain, who is dead, before his death he conveyed his part of Heck, under his father’s will, to George Zollicoffer.

3d. Simon, who is dead, he conveyed his interest in his father’s estate. to James Winters.

4th. Henry, who is dead without issue. John Purnell is his administrator.

5th. Amcy, who intermarried with William Westcoat, both dead without leaving issue ; John Purnell is her administrator.

6th. Silvia, who intermarried with William Perry, both she and her husband alive ; they conveyed Heck to G. Zollicoffer.

7th. Elizabeth, who intermarried with Richard Richards. She died, her husband is living, no administration is granted on her estate.

From this statement, the Clerk and Master reported, each child of W. Jones, the eider, or the lawful representative of such child, entitled to one-seventh ; and that Gr. Zollicoffer, by the conveyance to him, was entitled to two-sevenths. What effect the transfer made by Brit-tain Jones, Elizabeth Jones, and William Perry and wife, to Zollicoffer, had upon the interest to which they might be entitled in the increase of Beck, as next of kin to their deceased brothers and sisters, and whether by the conveyance they were estopped from so claiming, was submitted by the Clerk and Master to the Court, With a report in the alternative, stating their shares, if so permitted to claim, and if not.

To this report, Ruffin filed exceptions, among others the following, viz.

That the Clerk had not taken or reported any account of any of the slaves mentioned in (he bill, except Beck and her increase, although directed to take an account of all mentioned in the bill.

That the Clerk hath reported George Zollicoffer to be entitled to only two-sevenths of the negro .Beck, and *627increase, wbercas he is entitled to three-sevenths thereof, and afeo to such further share as will he equal to the value of the shares whirl» tint tain Jones, William Per-vy and Elizabeth Jones, had in the other parts of the testator’s estate, by substitution to tlseir rights thereto, so as to make good, as far as the said other parts will extend, the sale by them of the slave Beck to said George.

And on this day the cause came on to be heard on the exceptions.

Muffin, in support of the exceptions. — 1. The estate ought to be marshalled for the protection of Zollicolier. That term is commonly applied to assets; but the principle upon which it is founded extends to many other cases. It is boíl» distinctly stated and applied, in Savoy v. the Duke of JUhol — (2 Mk. 446.) it is, that where one party has two funds, a person having an interest only in one of them, has a right to compel the foraor to resort to the other, if necessary, for lisa satisfaction of both. The application of the rule is exemplified in the common law of specialty creditors exhausting the personal estate, creditors by simple contract shall be satisfied out of the realty. It likewise exists where one has a mortgage, on Blackacre anti on Whiteacre, and another has a subsequent mortgage on Whiteacre only ; the former shall be made to take to Blackacre, that the other fund may he left clear for the lattes1. The • reason and justice of the principle is so plain, that words only serve to confound. It ought to be applied whenever occasion far it arises. It is founded on this, that the debts to both creditors being just, they ought to be paid, they care be paid if the prior incumbrancer will further the principle of natural justice, requiring a debtor to pay his debts. It is in his {sower to lend his aid, and he shall not capriciously refuse it. The saw will not allow the rights of one person to depend upon the mere whim or *628wj]| of another; what the preferable creditor ought to do, he is made to do. Other instances of marshalling, ... ° arise ont of the situation of surety. The creditor shall not discharge the principal; if he do, the surety will be exonerated. There are two sureties, the creditor shall not discharge one, without the other j because each has an equity of contribution against the other, and no act flowing out of the mere will of the creditor, shall avail to vary their relation or responsibility to each other j and if the creditor destroys the obligation of the principal, or of one surety, so as to put it out of his power to furnish the other surety with the means of redress over, it shall be the creditor’s own loss. — Cheeseborough v. Millord — (l Johns. Ch. Ca. 412.) The rule was carried very far, in Wright x. Nutt — (1 H. Black. 136.) h right had estates in Georgia before the American revolution, and contracted a debt by bond to the Defendant, an American citizen who adhered to the country. Wright was a refugee, and his estates were confiscated; but an express reservation, or rather an appropriation pro tanto, was declared in favor of his American creditors. After peace, an action at law was brought on the bond in England, and the Chancellor granted an injunction, upon the principle under discussion. There could not he a stronger case than that. Tiie debt was a mere personal duty, and the debtor was sued personally ,• which seemed to be the primary remedy. Yet Equity turned the creditor from the debtor himself, back upon the security, which the law of Georgia gave him, because he could resort to that, and Wright could not, if he paid the debt, indemnify himself out of it. Another remarkable case — Hayes v. Wood — (4 Johns. Ch. Ca. 123,) was decided by Chancellor Kent. It is there held, that a creditor who has a surety, and also a mortgage from the principal debtor, should not pursue the surety personally, until he had exhausted the mortgage fund. And the action brought against the surety in Ncvj-Ynrk, was *629staid by injunction, until tlic creditor should, iu JVíííí;-Jersey, where the mortgage premises were situate, punsue his remedy against them, the surety being declared liable only for the balance that might then remain. This is a fa*, orne principle in a Court of Equity. It is one of those Equities flowing* from benevolence, and is accordingly cherished. It has'been extended to third persons, for and against their interests. In Trinmer v. Bayne — (7 Ves. S08 — 9 Ves. 209.) a vendee of laud died before all the purchase money was paid. The purchas»* being made ct auction, and only the articles not under seal signed, and deposit paid, the heir afterwards pas;] the balance., and upon a bill by creditors for an account of the estates and satisfaction, the heir claimed out of the personalty the amount he had paid; but he was refused, upon the ground, that in favor of the general creditors the vendor would have been thrown upon his specific lien, and so should the heir who had paid the vender and stood in his shoes. And as Lord Eldon observes, in JUliirieh v. Cooper, (8 Ves. 888.) “ This has been carried to a great extent in Bankruptcy, where, the crown by extent laying hold of all the property, even against creditors f the crown has been confined to such property as would leave the security of incumbrances effectual; nay farther, (page 395,) when therrdortgaged estate was taken by the crown, the mortgagee has obtained relief, and been satisfied out of the general funds of the IBankrupt, against the general creditors. Thus, by substitution, he is let at that fund which per direcinm he could not reach; because the crown attached that in pledge to him.” 1*1 one of 1 hese cases come more within this principle, and the spirit of the rule, than that before the Court. The bill may he taken either as secki::;;; a general account of the testator’s estate, of v.hich the&fe slaves form a part, or as praying for á’ parütion and' specific distribution of vise slaves amongst the remainder men. The doctrine is alike applicable to both cases.

*630 Three out of seven, joinI: owners of leu slates, sell one, anO now the other four claim from the purchaser iheir four-sevenths of that one, without regard to the nine that were left after the sale. The proposition seems in itself, upon the bare statement, to be monstrous.

The Complainants bad it in their bands completely to make themselves whole ; they had an undoubted right to resort to the residue for their full share of the whole, and exclude those who sold from any part until they had themselves been made equal. We liad no lien upon the remaining nine. Upon eviction of the purchased slave, we could not touch the other in virtue of any right primarily existing in ourselves; our redress is through the Complainants. Weave not told, whether those slaves have been sold and divided, or not. If they are still undivided, the Court having all the parties before it, will now divide justly and make the. Plaintiffs take them, in full of their shares, or pro tanto, if there be not enough to satisfy them, and no decree wili bo made, at all events, until it shall appear that they have actually been sold and distributed according to the decree ofl 800. Can it be doubted, that the four liad a right to their full shares out of the negroes on hand ? This is a matter which lies in compensation. The right, in substance, was to a seventh part of the value of the ne-groes. In such case, the slaves are not looked upon, and here they are not sought after as favorite domes-ticks, family pictures, jewels, or heir-looms.

The Plaintiffs want only, and can be satisfied with money. When the children were called up to a division, the four had nothing to do but to say to the three others, “ you arc not to have an equal share with us in these nine, for you have had Peck already.” Could the others have asked.any thing fairer.?. They could not say, we will have our part of these and y'<m may look to Zol-licoffer for your parts of Beck. The rights both of their brethren and of ZoUicoifer forbid it. The former *631«night reply, that indeed they might follow Becky anti would do it i? necessary to get their parts of the estate j b¡c! iiiey were not obliged, and did not choose to look so far, when they heel enough in hand to ¡say themselves, and ZoIIiccfier «sight, wills the greatest justice, say, qoa have no right to turn people over upon roe to take fjota me what you have yourselves sold me. Tims, the 'Complainants might have been paid without resorting to Berk, and upon the principle stated, they shall therefore, not resort to her now, except for the balance.

Gaston, contra,

There is nothing to shew that IL Jones, E. Jones and Perry, have sold under such circumstances as to make them liable; of course, it appears not that, either party can claim against them.

If they were liable, they are responsible to us only in consequence of their liability to Defendant, and there is no principle of equity which forbids us from being satisfied by him who has oar property, and sends us .to look for those who arc liable to him ; there is no obligation on us to prosecute for him a claim to indemnity, and a claim which arises not until we are satisfied.

These persons are not before the Court, nor could we have brought them before the Court. The decree, so far as they were concerned, is not, on its face, erroneous, a or could it have been complained of by us.

If any party is to suffer from the indirect conveyances of the error of the former decree, it should be the one whose unfounded defence occasioned it. not he who did all in his power to have it made as Defendant now says it should have been.

The true principle is, that when a party has two funds, he shall not, by bis election, disappoint another who has one fund only, but the latter shall stand in the place of the former, or compel him to resort to the fund which ran be affected by him only,. — (1 John. Ch» Sqy. <115 — 1 Madd. 203.) It is a rule founded on the *632basis of equity and benevolence, and a creditor who lias disabled himself from assigning his right to one fund, is not to be injured if iie has done so bona fide. — (1 John. -C]u Rep# 4l4.)

Complainants have no funds to resort to, other than those on which Defendant can claim. Complainant has no right in the fund to which Defendant wishes to turn him over. Complainants cannot resort to the fund out of which Defendant asks that they may be satisfied.

Complainants are seeking satisfaction, not by a capricious or unjust election of á method not necessary to be pursued, but by recourse to the only means in their power i and while their claim on'this very property is found to be undoubted, it is prayed that it may not be allowed, but peradventure it may produce inconvenience to the wrong-doer.

Ruffin, in reply.

It is objected that the Defendant lias no right to be indemnified out of the shares in the residue belonging to his vendors : that he lias no lien on it, and cannot get at it

It is admitted that we have no lien, and in virtue of our primary rights, cannot reach those shares ; and that is the very ground of our equity, if that would do, it would be an answer in every case. It is not the question, whether we have a lien, but, whether the Complainants have, if they have, we claim to be substituted to it. What lien has the surety upon the premises mortgaged by his principal to the creditor ? Or the simple contract creditor upon the freeholder ? The foundation of the claim in all cases is, that one had no lien and the other had, and that the latter chose, of his own mere will, without necessity, to abandon his lien and lake what would have satisfied the other. Equity sets up the lien again, so that he, that would be otherwise defeated, may be satisfied too$ since the debtor ought to pay both. And if the lien-creditor makes such a disposition of his *633ii'"':;. that equity cannot revive it, be shall abide the loss. Ti us, in the ease died, the surety shall be discharged, •if the creditor release his mortgage J because he ought to have preserved it for the indemnity of the sureiy. And the case of the Extent, by the Crown, carries the principie much further than we ask here. It would cbs-b«e us to assert it, not only against ihe Cowipidnatils, hut against the general creditors of oar vendors 5 because the Complainants, who have a lien on tLo redtSuo, and might have taken that instead of letting it go to the creditors at large, and have nol done 00, fnd have taken,? “ affeded ihe fund in pledge lows.”

The justice of letting the ConipbJu&ttto have thou shares out of the residue of the slaves, can not he <L-ole-d. Indeed nothing can be more, jr.fti iban that they ,‘ honhC No harm is done to our vendor» 5 ¡.hey lose bos a cent by it. Their co-tenants get nothing hut ¡heir due, and Zollicoffer keeps nothing i::i. wbai In has paid for. The parties, all around, have what they ovght. But, right as it is, it is thought it cannot be effected, because, the Complainants have no lien upon the residue. It is denied that such lien exists, and Hierefcnv, urged that the whole of our argument, being founded on a fallacy, fails.

It Is conceded, that our claim rests upan the right in. the Complainants, to resort to the remaining slaves for their share of the whole. Whether this right he in the nature of lien, technically speaking, or a charge in equity, or an interest of any other kind, is ¡monitoria!. The substance is, that this land affords a means of satisfaction, either at Law or in Equity, within the reach of the Plaintiffs, and they must take to it for that purpose. It is of tiiat description. If it be a mere legacy, now in. the hands of the executors, it is clearly open to this Cou-d to distribute it justly. If the estate has become, by the assent of the executor, absolute at law and vest-*634e¿ in the parties as joint-tenants, in common, it was with - in the reach of the Complainants, both at Law and in Equity. The Complainants, if they had been satisfied wj^, t}ie p,qcej might have affirmed the sale, and recovered their share by action, for money had and received. Or if they did not choose to take the price given, they might have brought trover and recovered a fair price; for although one tenant, in common, cannot maintain trover against his co-tenant, for a chattel, simply upon his bare, exclusive possession, yet if one destroy the chattel, or sell it out and out, he may. Or, they might have possessed themselves of the residue and de-lied those who sold, until they would account; for they could neither recover in detinue, trover or trespass, and thus have driven our vendors into equity, where all would have been settled right. Or they might, as they have done, come themselves into this Court, arid ask for an account and division. What embarrasses the case is, that it turns out, that Beck, by reason of her increase,* seenis, at present, to be worth more than all the other negroes. But that does not affect the rule. It only alters the proportions, and the rest must go as far as they will. Suppose Ileck had never iiad issue, and there were now one hundred of the others! That makes the proposition plain. Every body would say at once, those who sold her must take her in their parts. The objection recurs, however, that though they ought, they are not obliged. Equity would oblige them, if the others ask it, and will compel the others to ask it, if the interests, and therefore the rights, of third persons require it. Suppose again, that Beck had died the day after Zollicoffer’s purchase ? Surely those who sold her are not to run off from tiic others, with tiie money in their pockets. If she had died before the sale, it would have been the loss of all. If after the sale, it shall be the gain of ail, and not of those only who sold what they had no absolute right to. That would make them pro-*635jit, indeed, by their own vturaj;. They would have to account with the other owners; and if the law would not give an adequate redress, equity would, by sustaining a hill for an account. Si is not necessary that there should be a direct legal remedy 5 if is sufficient if it can be obtained before any tribunal, if this were a desceñí: of one hundred acres of land to two brothers, and one were to eved. valuable buildings on one acre, under our statutes for partition, by petition in the County Court, he could not he reimbursed $ the partition must be equal, according to quantity and original quality, and there would be no certainty that even that acre would be allotted to him who improved it. fluí equity would pro • tort him, either by assigning him that, in his share, at its original value, or by compelling the other to reimburse to him, one-half of his out-lays, which brings it to the same thing. Suppose the one to sell an acre to a third person, who puts on the buildings. It could not he borne, that the two brothers should then divide the whole estaie, and assign thin cere to him, who liad not joined in the sale, or even divine the ninety-nine acres equally between them, giving to the vendor the one-half that part, and leaving the other to claim one-half of the acre sold. He would have the right at law, but equity would restrain him. Here, he would not be allowed, at one moment, to treat it, for the purpose of doing himself justice, as a part of the original joint estate, and in the next, as a distinct and separate estate, not connected with the ot her, and not to be embraced in a general partition. This Court would include it as a part of the whole, in the partition, and, not leaving it to chance, would assign it, at once, in the share of the vendor, .so as to make it effectual to the purchaser. It is not a case for casting lots. And so, here, Heck and her issue will, for the purpose of justice, be taken as a part of the whole estate, so far as to exclude those who sold her from the residue., until the other children get shares equal to their value.

*636But it is said, that however this might have been, at a IM,,)líer timo, it is now too late* The slaves are no longer in the power of Complainants ; they have been ti3vi.ded. and Brittain, Sylvia and Richards, in right of his deceased wife, have received their shares ¿ and this, too, under a decree of the Court of Equity.

My first answer is, the fact is not so; at least it does not, as yet, appear. The Complainants must make it out, before they claim any thing from it; at all events, the Court can do no less than order an enquiry.

But concede the factf my nest answer is, that it is Immaterial, and does not affect us in this case. It is admitted, that the right we claim is founded on the principle of benevolence, only : and, therefore, if a party acted •with good faith, in parting with the security to which another seeks to bo substituted, it is the latter’s misfortune, and shall not prejudice the former. But knowledge of another’s rights, at the time of doing an act which may affect those rights, always rebuts the pre-tence of innocence. Notice, turns a purchaser into a trustee; it raises a legal presumption of fraud. The en-quiry is, therefore, simply, one of notice or not.— (Cheeseborough v. Millord, 1 John. Ch. Cas. 414.) In some instances, it may be necessary to prove, by witnesses, actual notice, as in the case of the prior imd subsequent mortgages before stated, before the latter mortgagee can allege that the former acted inequitably in raising his money oat of Whiteacre; it must be shewn that he knew of tito subsequent incumbrance. There are other cases, of which the circumstances, front the beginning, constitute notice, and require the creditor .not to divest himself of any of his securities.

Thus it is in suretyships j %i a surety,” says 2&nU Ch. e( by Ms very character and relation of surety, has an interest that a mortgage taken from the principal debtor, should be dealt with in good faith, and held in trust, not ®»ly for the creditor’s security, but for the surety’s in*637demnity ; and tho creditor must do no v.-ilfu! act, either to poison' it in the first instance, or to destroy and cancel it afterwards.” — (A Johns.. Ch. Cas. 130.) At the tine the Complainants divided with their brethren, they not or.íy b- ¿ from one long possession, presumptive no-noü cc, hut^fUe bill itself states express notice of one purchase, and makes one title the ¡«round of coining into this Court, instead of suing at law, as they would have done if we had been trespassers. The decree, does not affect us. Fraud vitiates a judgment or decree, as welt as a deed or other matter in pais. The ground of our redress is mala Jides. That consists in surrendering their claim to the property, after they knew of our interest in it, if that surrender be made by private arrangement, it is nullified by reason of the fraud. The same thing equally affects the proceeding, although the parties may choose to put it in the form of a process. In the case stated of the brothers dividing lands, descended after a sale, by one of a part, could it make any difference if they proceeded by petition, between themselves, instead of mutual releases? It is supposed, however, to make a difference, that the Defendant was here a party. He was not a party in the sense that would affect him $ the Court decided in his favor in toto. After that, and while that stood, lie had nothing to say to the other ne-groes. His interest in them depended upon the loss he sustained in those he bought. When the decree gave them to him,’he could say nothing more •, his mouth was closed 5 the décree was jfbial as to him ; it has been held so by this Court, otherwise it could not have been examined on a bill of review. It was, therefore, the same thing as if he had never been a party •, he was no longer so, and could not move or be heard in the cause. For both these reasons, therefore, our claim is not repelled by the decree. We had, according to the frame of the decree, no interest, in the remaining subject and therefore had no right to interfere. It put us out of Court, *638and therefore, if we had au inU'«>- v* anu» w.t o-m :-; it. The mutter was completely an nn-r alias acia, ami cannot bind us ; bedeles, the other Dddiduds never answered or set iip any defence ; as to them, he Plaintiffs managed as they pleased. Under these ciremu--ranees, the acquiescence of the Plaintiffs, in that pad of the decree, must he regarded as a purely voluntary"'¿orremlei of their lien, with notice of our situation, which subjects them <0 the loss and hot us. Eut if we are to be v- >• sidered as parties, and as affected by the decree, th. whole is opened now by the decree upon the bill of review. It cannot be heid that a decree made upon one aspect of the rights of parties, shall be reviewed and reversed so partially as not to effect all the purposes which si particular variation may render proper and equitable. Wc shall bo wholly without remedy if the Court should ■so decide. We could not bring a cross-bill, because the matter, having been already decreed, could not be heard except in review ; and we could not bring a bill of review heretofore, because until a decree in this cause, we had no interest sufficient to support a bill, and it is now too late, being twenty-three years since the decree was pronounced. At all events, if the whole decree be not open, and if the submission to that part of it, be not a voluntary surrender of their claim on those negroes, their laches in not praying to review that part also, is tantamount to such a surrender. We could not review. They could, and would not, and they must bear the loss. And, at any rate, they might now bring forward the question by an amendment, which the Court would allow ; and they ought never to get a decree until they do. Wc are in no default; and it would he strange if we arc to lose a known, certain and defined equitable right without def emit.

II. It is necessary that the times of the death of all the children should be ascertained, as well to determine the interests of the purchasers, Winters and Carslayhen, as that of the Defendants.

*639 1. It may be remarked, that according to tbc report, Winters is clearly confined to one-sevenIh part, Simon’:» anginal share, of the estate. His deed is for Simoii’c “share and part of Ms father’s estate.” If any oí íbe others were then dead, Simon did not succeed to their share a3 a part of his father’s estate, but ho took it as next of kin of his brother or sister. Bat if bis or Uarstaphen’s purchase includes more, the quanlimi can, only be determined by knowing which were dead at their pic'chasca, so as to shew' the exact interest existing in their vendors at at those times.

2. Bui it is the more important to car claim to make this enquiry.

1, As relates to the interests of onr vendors in Beck, considered as a distinct paid of the estate, in which each of the legatees hold an equal share $ it seems clear that if they acquire, after the sale, any greater interest, whether the samo come by purchase or act of law, the came shall enure for our benefit, it is but the common application of estoppel; and there could not be a more, beneficial use of that doctrine. If a disseisor sell land, and afterwards the disseissee release to him, the purchaser shall hold against both. If the son enfeoff another of the father’s land, and then the lather die and the lana descend to the son, he shall not eater against his own deed. — (Co. Lit.) Upon a principle of this kind, also, there is an equity in cases of specific performance. If one sell land to which he has no title, that does not per sc, exclude him from the rigid of specific perfomaace, but it will he decreed upon his bill, if he can make ntlc at the hearing, or within a reasonable time afterwards,. —Mortlock v. liuller, (10 Ves. SI 5.) Coffin v. Coopen (14 Ves. 204.) The rule is founded upon the indulgence which allows one to buy his peace and make good lain bargains. It seems to follow, that the converse of the proposition is likewise truc| that if the, vendor, after the contract, acquire, the title, the perchase?' may dcmwl *640performance. So that if our purchase were of land and vested in articles, we could call on our vendors for a ti-tie. Our deed is surely equal; it is a conveyance for {.jie intei'©st they had, and must he considered an article for the balance.

All the shares of Beck, therefore, that have fallen into our vendors, since the sale to us, belong to us, and servo to increase our proportions in her.

2. Upon the same principles, their increased interests in the residue, shall exonerate Beck. The question is, at the time of division $ if those who have sold, have then an interest in the whole, equal to what they have already had, it shall be used as a balance between them $ it is immaterial how or. when their interests wore obtained. Suppose those then had, after the sale to us, bought out all the rest but one. Upon the principles already insisted on, they should have had no more until that one got his share. The substance is, the shares they are entitled to when they come to a division ; how much, and not how they acquired them. There ought, therefore, to be a further enquiry ordered upon these points.

8. The report stales, that after June, 1807, George Zollicoffei* gave some of the issue of Beck, to his son James, who now has them in possession, and for the value of which, the Plaintiffs would charge George’s estate in money. George died in 1815, and shortly after the Defendant, Webb, administrator of George, brought suit for them, and judgment was given against him. The bill of review was filed in 1805 j no bill of sale, or deed of gift, from George to James, is stated.

It is not easy to imagine upon whai ground James obtained a verdict at Law. The gift by parol was void under the act of 1806, awl James’s possession fiduciary; and George made a will, so as to exclude the operation of the proviso. It must he taken, therefore, that he defended under the eta tute of limitations. That was not sufficient; but if it was so held at law, the Court has *641«sow su! opportunity of doing jnal ico to sill íbe partios, and decreeing Jones to bear a part of the burden of I he Joss, and. will do so notwithstanding the time. The Court ought to drew* directly in revi, that the slave;! theiiHeh oh be delivered up and divided. It is no objection, that Jones ¡mus them and is not a party ; be is not to be taken notice of at all. lie cornea in pending the suit, and his title, if it liad even been by purchase, would for the purposes of this cause, and as to these parlies, he absolutely void. It is the same thing as .if no suck title existed. If it were otherwise, there would be no end to litigation, as it would be easy to slip the subject; *n dispute, from hand to hand. Ideare U i;; not ueceesa-?y to lake notice of a purchaser p¿;nlanle lite, in the decree i nor to bring him in by suppleinenial bill. — -Murray v. Unlun — (1 John. Ch. Cas. 5fle.) JJ.tdcaJJ v. Pvl-ecrioft~ — (2 Ves. & Uname. 200.) L’ueh a purchaser is hound absolutely by the original decree, and shall not be ptrmilted io dispute it.- — lard Bacon’s works, vol. 4, 511. Finch v. Newnhum — (a Vern. 218.) It is no objection, that the usual decree is upon the person, that he deliver the thing in dispute, or that here the defendant is administrator, who now had those slaves in his possession, and is only chargeable upon the assets that have come to his hands. The primary jurisdiction, it is true., io m personam, but when necessary for justice, or to Kiako the first decree effectual, the jurisdiction is also in rem; and in partition, from its very nature, it io always so. 1 mean partition of legal estates, and not where, there is a trustee before the Court.- — jFe?m v. Baltimore —{Ves. Rep.) If this were realty, there, is no doubt the Court, disregarding the in ter mediato titles, would clear the possession and put the right, owner in. That would be but following the law; for he who enters under a Defendant in ejectment, after verdict or pending the suit, is put, out under the writ of possession, vt ithout bringing a new ejectment. Were, it not so, the Plaintiff would !>,;■ *642staved off fore ver. So, here, if the Court will entortáis ^jjjs new |>iii,-for the partition of mere personal chattels, they must build up a proper system to carry it com-pfetely into effect, in a .way that will do justice to all parties ; and they must model their process or make it, so that it shall be adequate to the execution of the proper decrees.

Henderson, Judge,

delivered the opinion c? the Court:

A Court of Equity will restrain a person in the capricious exercise of ills rights; for benevolence becomes a duty enforced by Courts of Justice, when its exercise is in no wise prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can get satisfaction only out of one of them, and they are both equally convenient and accessible to him who may get satisfaction out of either, and nothing but mere caprice governs him in making the selection, there Equity will restrain him to the fund not onerated by the claims of the other ; but if convenience, and not caprice, is his motive, the most that Equity does is to substitute the disappointed claimant to his rights. The first is rarely done; for it is matter of extreme delicacy to'restrain a person in the exercise of a legitimate right, in favour of one who has no cliutn upon him by contract, and whose only connection with him arises from being interested in the same common fund; yet whore there is a fraud, moral or Segal, or snore caprice, he will he restrained. The hitter, to wit, substitution, is very frequently done, and is the foundation of marshalling assets in favour of legaieos and simple contract creditors, and a | plies incases where there is neither fraud nor caprice^ it is scfíick at. that his fund has been exhausted by one who had a double means of satisfaction. The Defendants call upon us, in this case, to restrain the *643omplniuants from interfering with Keck and her issu**, R'ü! v that i.'icv muy be turned over V: the other * * *» «• ^ slaves anti their issue, which bedouged !o William hones, Hie elder, so far as the right;; of his vendors extended in ¡¡aid residue, they having sold one of the common slock or fund to him in severalty. A r! were it money, or a n•■!!•>. of .diecj), or any thing of she KLe kind, where value alone is to fco regarded, and one, fund is as accessible to the C:k:>c-,,,;í;¡v.m;-í as the other, so shut the Court could porrehe that «¡ere caprice, cy fraud induce<l the Couipi.'úm'itü) to pursue ii.e part in DriemSants pos»es-sio:s. Use Coart might exercise the very delicate power before mentioned5 but towards ¡iropet ty of this kind it is far d’iibivut. It is well knowts, as to slaves, we have oi:r partialities and antip aides, regardless of their real rcí.'*;\ and which may arise fro in feelings very ai.Veven:: JVt.ai íñoi» that di base the human heart 5 and si person who is;,;! right is: comino» with another to a pare**! of shuc-g misfit be actuated by other motives than mere ar.iric;: urfeaiul, vi:» reiased to validate a sale ststde in severally by his conartner of sewe favourite claves. lit; furCht well say í» the {Mcchaner, Siock yourself is* íiio title of your vendor to the icffiviairg skr.es for coaapoa-íj.!lú;¡5 : it is íuiíUiñeai that yon MumM stand in Sik place., e.nd he suits!listed to Ids right:-;.

I”:»;. Mine is analiier, msd perhaps stronger objection to the rc-íjiícst of the Defciidant. This canse came on to be heard snore than twenty years ago, and as to this question, present ed tho same aspect then that it does at present With- a full view of the case, the Court, after diMui'-'siug’ the hill as to ISollieoiFe.r, directed the remain-iug slaves to be divided among the representatives of Gillian» Jones, induding t/lolíkoííer’s vendors, that is, as if the negro Kook had never been. This double fund was therefore lost without any default of the Complainants, and by a decree of a Ccnrtat that time of Supreme jurisdiction, and it cannot he presumed, that the Com*644plainants fraudulently and voluntarily abandoned tbaf; fund a« a means of satisfaction, with an intent caprice ously to pursue by a bill of review the negroes in Zoili-C0ff01.*s possession ¿ and therefore, ibis double fund, which they once might have had for their satisfaction, lias been lost, and that not by their default or consent, which cuts up the very grounds of the Defendants application. The, exception must be..overruled.

As to the advice asked by the master, upon the accumulated rights of Zollicoffer’s vendors on the death of some of the children of William Jones without issue, 1 conceive that such accumulation enures to the benefit of Zollicoifcr, whether ouch children died before or since the sale to him; for certainly they can claim nothing in Beck, or her issue, either by their then title or one subsequently acquired, they having sold her to Zollicoifcr in severalty.