Butler v. O'Hear

A motion was made for a re-hearing, and was argued by Mr. Pringle and general Pinckney for complainant; and by Mr. Ford and Mr. Read for defendant. It was urged on the part of complainant, that Mr. O’Hcar having no notice of the trust to M'Queen at the time lie made the purchase from Mr. Butler, could not be affected by the judgments against M‘Queen; and being safe, he ought to perform the contract; and the direction of M‘Queen to convey as Butler should direct, shews a trust for him an a counter security. That after articles for the sale of land are executed, the interest rests in the vendee, and no judgments after the articles and before the execution of titles can affect the land. The common law cannot lay hold of a personal trust estate, though the statute of frauds gives a remedy against the lands by extent. The counsel cited 2 Powell, 56, 61. 1 Chan. Cas. 34, 39. 2 Comyns, 339. 13 Viner, 118, § 7, Title Purchaser. 5 Bac, 583. 2 P. Wms. 81, 618, 678. For the defendant it was argued that the title was in too much obscurity for the court to impose it on the defendant. Here are trusts upon trusts; a conveyance in fee to Williamson, who has no in-*401iei'fsi. lie is said to hold in secret trust for McQueen; and M'-Queen directs Williamson by letter to convey as major Butler should direct. This raises another trust for Butler. How the judgments and liens against these several parties would affect the lands, cannot he seen; and the court will on no account oblige defendant to take a title under such difficulties, especially wb.cn the person to make the legal title requires to be released from the effect of such incumbrances and from the usual liabilities of a seller. It cannot be pretended that all these difficulties were disclosed either at the time, of the sale, or indeed at any time pending the negotiations; and such concealment is fatal to the contract. The counsel quoted 18 Viner, 118. Chanc. Cas. 34.

[I have no official statement of the opinion delivered by the court on the motion for a rodtearing; but 1»; is understood to have been rejected.]

Chancellor Hunt died in the summer of 1794, imme - diately after the rising of the court, and the vacancy was not supplied fin* some years. The court continued to be held by chancellors Mathews and Ilutledge.