adverse to the right or title so sold or purchased: (ƒ) and every deed, conveyance, bond or contract, made, executed or entered into in violation of this section, shall be void-and no right of action shall accrue to either party, under such deed, conveyance, bond or contract. SEC. 2. It shall not be lawful for any person or persons, to contract, or undertake to recover, or carry on any suit for the recovery of any such pretended right or title to land as aforesaid, of which adverse possession is held under conflicting title as aforesaid, for or in consideration to have part or profit thereof: and the parties to such contract shall forfeit all right, title, interest or claim in or to the land claimed under such pretended right or title, and all right to maintain any action or suit at law or equity, upon such pretended right or title; (g) and such right, title or claim shall vest in the Commonwealth, and enure to the benefit of the person in possession without office found. SEC. 3. That the person or persons in adverse possession according to the provisions of the first and second sections of this act, his or their heirs or assigns, or the person or persons, his or their heirs or assigns, under whom such occupant or his heirs or assigns claim or hold, may shew or plead the sale or purchase of any pretended right or title in violation of the first section of this act, or any contract or agreement made in violation of the second section of this act, in bar of any action or suit, or claim founded thereon, and the and conveyance, adverse to the vendor, notwithstanding the vendor might have had a constructive possession, by an entry and possession within the interference under his older grant.-Young v. McCampbell, 6 Mar. 493. (ƒ) The above act does not limit the prohibition to purchase pretended rights or titles to land, to cases where the titles are derived from different sources, but is equally protective to a defendant holding under the same patent with plaintiff as if they claimed under different entries or patents.-Lillard v. McGee, 3 J. J. Mar. 551. It 2. The above act does not prevent a conveyance, where the occupant holds in such a manner that he is bound to surrender the possession to the vendor, without questioning his title. protects such possessors as can, without violating the principles of law or conscience, hold adversely to the claimant, who holds a title for the land. Castleman v. Combs, &c. 7 Mon. 276. See Craig v. Austin, &c. 1 Dana, 518. 3. The above act declaring conveyances for land in adverse possession void, will not prevent the vendor of land who sold in good faith and without an intention of violating the law, from treating his conveyance as void, and recovering on the strength of his former title for his own use and benefit.-Wash v. McBrayer, 1 Dana, 567. This case gives the construction which the three first sections of the act should receive when taken together and reserves the question as to the effect of a champerty contract under which a suit may be instituted. (g) A judgment was obtained in ejectment, and possession delivered to the lessor of the plaintiff; afterwards some of the heirs, who had been dispossessed by the judgment, conveyed to A. and B. who with the other heirs claiming the better equity, exhibited their bill against the suc cessful party in the ejectment; the court said that the attitude and circumstances in which those alienees stood in relation to the other complainants, and to the equitable title conveyed to them by those deeds, and to the ejectinent and judgment for mesne profits complained of, seemed to except their case out of the reason of the common law against buying and selling pretensed titles, and of the statutes against champerty and maintenance.-Cummins, &c. v. Latham, 4 Mon. 105. better to enable the defendant or defendants in any such suit to avail himself, herself or themselves of the benefit of this act, it shall be lawful for such defendant or defendants to bring the parties to the sale or purchase mentioned in the first section of this act, and the parties to any contract made in violation of the second section of this act, before the court, and compel a discovery on oath, of any such sale or contract. SEC. 4. That neither party to any contract made in violation of the true intent and meaning of the second section of this act, shall have any right of action or suit thereon. Defendant may bring the par ties to such con tract before the court and compel a discovery on oath. Such contracts not to be enfor ced by suit. Repealing clause. SEC. 5. That so much of every act or acts as comes within the perview of this act shall be, and the same is hereby repealed. Provided however, and be it further enacted, That a devisee of land, shall not be deemed to come within the provisions of this act, but a devisee of land and his heirs may take and hold the same in the in the act. same manner as if this act had never been passed. SEC. 6. Be it further enacted, That no person who may be compelled to discover according to this act, shall be subjected by such discovery to any criminal prosecution or punishment imposed for the offence of Champerty or Maintenance, by the existing laws, nor shall such discovery be used in any criminal prosecution. SEC. 7. It shall be lawful for any person possessed of lands or tenements, or the reversion or remainder thereof, to take or bargain to take, any outstanding title, of any other person, so far, and so far only as it may confirm his former estate. Devises of land not embraced No discovery under this act criminal prosecution. to be used in a Persons in possession, &c. may contract standing titles. for adverse out Not to apply to cases between landlord SEC. 14. Be it further enacted, That none of the forfeitures herein declared, shall be applied to cases of controversy between lessor and lessee, mortgagor and mortgagee, vendor and vendee, trustee and tenant, &c, and person or persons for whose use or benefit any trust may be declared. [The 11th section of this act provides for redress by bill in chancery, after judgment or decree against defendant. Whether that section was intended to embrace cases under the foregoing sections, or to be restricted to those arising under the other provisions of the act: Quere. The remainder of the act will be found under Title occupying claimants, post.] TITLE 38. CHANCERY PROCEEDINGS. Court of chancery may employ one or more commissioners, and cause allow 1788. IN FORCE FROM FIRST OF JANUARY, 1788. AN ACT for amending the several acts of the General Assembly concerning the high court of Chancery: Passed December 22, 1788.-12 Hening's Statutes at Large, 766. 1 Litt. 520. SEC. 5. It shall be lawful for the high court of chancery in such cases, as may require a report, which cannot be performed by the court without great delay to other business, to employ one or more ance to be tax- commissioners (a) and to cause a reasonable allowance to be taxed in the bill of costs. ed in bill of costs. (a) The report of the master in chancery having remained one term before a final decree, and no exceptions taken to it, the evidence on which the report might have been made, cannot be excepted to in the appellate court.-Adams, &c. v. Essex, &c. 1 Bibb, 151-2. 2. The regularity of appointing auditors cannot be questioned, unless the party shows some injury done to him thereby.-Neely's Adm'rs. v. Neely's Heirs, 1 Litt. 294. 3. On reference of a cause to a commissioner, the order should specify the principles on which the accounts are to be taken, or the inquiry proceed as far as the court shall have decided thereon, and the examinations before the commissioners should be limited to such matters, within the limits of the order, as the principles of the decree or order may render necessary.― Farmer and Arnold v. Samuel, &c. 4 Litt. 190. 4. Where a commissioner's report is, on its face, vague and uncertain, as in stating that there were losses of debts, &c. without stating to what amount, the court may well set it aside without any exceptions filed.-Bolware v. Bolware, &c. 4 Litt. 258. 5. The court may discharge the order appointing auditors and settle the accounts themselves. -Shipp v. Jameson, Litt. Sel. Cas. 190. 6. Where auditors appear to have taken upon themselves the office of referees, and instead of reporting a statement and settlement of the account, report an award with regard to the rights of the parties, the court should set aside the report.― Saunders v. Saunders' Ex'r. Litt. Sel. Cas. 10. 7. Where, on the hearing of a bill for an account, there is great obscurity in the proofs, the chancellor ought not to pronounce a final decree, but appoint commissioners to take explanatory evidence, and interrogate the parties on oath.Simms v. Kirtley, 1 Mon. 81. 8. In a suit for slaves and their hire, by ward against the representatives of a guardian, an exception to a commissioner's report for their hire, because the persons claimed as slaves were free, brings the matter of their freedom sufficiently before the court, although it is not alleged in the pleadings.-Bush's Adm'r. &c. v. White, &c. 3 Mon. 105. 9. Where it appears that the complainant is entitled to some relief, (in a suit concerning land) but the extent and position of that relief cannot be ascertained from the proof, and the defect of proof is of that nature that it can be supplied by a surveyor or commissioner, it shall be done, and the bill shall not be dismissed.-Hancock, &c. v. Hancock, 1 Mon. 122. .17.89. IN FORCE FROM, ITS PASSAGE. AN ACT prescribing the mode of collecting the allowance to the commissioner of the high court of Chancery: Passed December 11, 1789.-13 Hening's Statutes at Large, 46. 1 Litt. 521. Fee of com collected. Be it enacted by the General Assembly, That the commissioner may issue his tickets for the sums allowed by the high court missioners of of chancery, for services performed by him under the orders of the the court of said court, and deliver them to the respective sheriffs, at the same chancery, how time the clerk of the said court is directed by law to deliver his tickets, and that the several sheriffs shall collect and account for them in the same manner and under the like penalties, and shall have the same allowance for collecting and for insolvencies as are prescribed in the case of the clerk of the said high court of chancery. 10. The court settled the principles upon which a compensation is to be allowed an executor or guardian, and gave directions to the commissioners in the interlocutory decree; any objection to that allowance may be made in the appellate court, although no exception was made to the report of the commissioners.-Wood et ux. v. Lee, 5 Mon. 63. 11. It is irregular for the court to direct an auditor to take the settlement of an executor's account by the county court as the basis of the settlement, to disallow the items impeached, surcharged and falsified, and to add thereto when the proof justified it, without having previously decided the question concerning the accounts. But in such cases, where the court afterwards acts upon the account, it will cure the irregularity. Kellar's Ex'rs. v. Beelor, 5 Mon. 576. 12. Exceptions to the report of a commissioner may be made at any time, even on a final hearing. But the report must not be set aside, so as to prejudice the rights of litigants. When set aside, it would be the duty of the court, on the application of the party, to afford him an opportunity to take and present his proofs and points relied on. That witnesses are dead, upon exceptions filed many terms after the return of the report, is no sufficient reason why an erroneous report should stand.-Honore v. Colmesnil, 1 J. J. Mar. 508. 13. The court in acting on a commissioner's report, is not bound to consider it conclusive, but may disregard it partly or entirely, if there be VOL. I. 38 . evidence showing that it is erroneous without exception filed.-Ibid, 510. 14. If new matter be introduced into a cause after the report of the commissioners, the case should be again referred, or the court should take up the whole case and decide upon all matters introduced.-Ibid, 512. 15. It is the duty of a commissioner appointed by court, to do those things, and those things only which are required of him by the order of court; and if he transcends the authority given him, his acts are nugatory.-Ibid, 511. The power conferred on our commissioners 16. Whatever evidence is taken by a commissioner, should be reported to court.-Sibert v. Kelly, 5 J. J. Mar. 83. 17. An allowanee to three auditors of five dollars per diem each, for forty days services, is unreasonably high in ordinary cases.ses.-Thompson's Ex'r. v. Saunders' Heirs, 6 J.J. Mar. 100. 18. When a case is reversed by the court of appeals, an auditor's report is subject to objection, and may be set aside for good cause shown. -Haden v. Haden's Heirs, 7 J. J. Mar. 171. 19. An auditor must write down the statements of the witnesses that may be sworn before him, and report their statements to the court, and not his conclusions drawn from them.-Garner v. Bealy, &c. 7 J. J. Mar. 226. 20. Papers admitted by the parties to be evidence before a commissioner, should appear by proof to have been so admitted.-Commonwealth v. Chambers, 1 Dana, 12. When lands may be sold. 1790.. IN FORCE FROM THE FIRST DAY OF MARCH 1791. AN ACT to amend the act entitled "an act directing the course of Descents:" SEC. 1. Be it enacted by the General Assembly, That whensoever of an intestate any lands shall descend from a person dying intestate to two or more heirs, any one of whom shall be an infant, feme covert, non compos mentis or beyond sea, and the dividend of each heir shall not exceed the value of thirty pounds in the opinion of any court hereinafter mentioned, it shall be lawful for the high court of chancery, or the court of the county or corporation in which such lands or the greater quantity of them lieth, to direct the sale of the said lands, and the distribution of the money arising therefrom, according to the rights of each claimant: Provided, always, That each heir residing within this Commonwealth, shall be first duly summoned to show cause, if any he can, against such sale; and where any heir shall reside without this Commonwealth, the court shall make an order for publication, which order being inserted in the Virginia Gazette for eight weeks successively, shall be considered of an intestate may be sold. as a summons: SEC. 2. Where one or more slaves shall descend from a person When slaves dying intestate, and an equal division thereof cannot be made in kind, on account of the nature of the property, it shall be lawful for the high court of chancery, or the court of the county or corporation, by which the administration to the estate of the intestate was granted, (b) to direct the sale of such slave or slaves, and the distribution of the money arising therefrom, according to the rights of each claimant. Provided always, That each claimant shall be first duly summoned to show cause, if any he can, against such sale. Complainant may unite dif 1796. IN FORCE FROM THE FIRST OF JANUARY 1797. AN ACT to reduce into one, the several acts directing the rules and proceedings in the Courts of Chancery: Approved December 19, 1796.-1 Litt, 521. SEC. 3. The complainant may insert in his bill as many defenferent defend- dants as he pleases, though they claim under different titles; (c) but if any of the defendants disclaim, he shall pay them their costs, ants in the same suit. (b) A bill for sale and distribution of slaves descended, should be filed in the county where administration was granted; the administrator and all the heirs are necessary parties.-Kendrick, &c. v. Kendrick, 4 J. J. Mar. 241. (c) When defendants hold under distinct claims, a bill may be dismissed as to some for want of parties, and tried on the merits as to others.-Stephens, &c. v. Terril's Heirs, 3 Mon. 132. |