John McLean

“ Under this statute the question arises, whether the representatives of Payne, in asserting their claim to the land in controversy, can be considered creditors? Whether, in a case where the relation of vendor and vendee exists, the consideration having been paid, and a naked trust only has descended to the heir, he can protect himself under this statute, after the lapse of seven years, against a bill for a specific performance. ”

“ Can lapse of time operate to the prejudice of the complainants? Have they slept upon their rights?
In about five years after the conveyance should have been executed, we find Payne in Virginia, endeavouring to procure a title. And at that time he did prove a recognition of his claim by the widow of the obligor, who was the only person, according to the views then entertained, that had an interest in the land, and was capable of entering into a legal obligation. Payne's visit is repeated to Virginia for the same object, and he sends an agent at another time. In 1798 he sells a part of this land ”

“ What prudent person, in the absence of such circumstances, would undertake to state, positively, that his nearest neighbour was absent from home any given month, some twenty-five or thirty years before.
But the complainants have proved by the three sons of Bush and his widow, that he was from home hunting the greater part of his time; and some of them say that from his conversations and several facts, they believe he often visited Western Tennessee. And more than one witness, who lived in the neighbourhood of Josiah Payne, became acquainted with Bush in his expeditions to Tennessee. ”

“ And this court can have no hesitation in saying, that the complainants in this suit can in no correct sense, claiming as they do a specific execution of the contract, be considered creditors within the meaning of the statute. They do not seek to subject the lands which descended to the defendant, to the payment of debts contracted by his ancestor, but to divest the naked legal title in favour of an equity clearly established. An equity founded upon a contract which acknowledged the receipt of the consideration in full, in 1787 ”

“ All persons are considered creditors that have demands originating from contracts or agreements.' And in answer to the arguments of counsel, that the statute could have had no reference to heirs, but to the personal representatives and the personal estate; the court remark, 'the only inquiry is, whether it were reasonable that the legislature should think of the situation of heirs, in respect to the debts of their ancestors;' and again-'if no lapse of time can secure the estate thus descended, the peace of society would be much disturbed. ”

“ The complainants further state, that the obligor elected to pay the said sum of one hundred pounds, by giving the land as expressed in the above recited bond; which mode of payment was assented to by the said Payne. That said Isaac Coulson died intestate sometime in the year 1791, leaving the defendant his only heir at law. That a grant was issued for the land on the 15th of September 1787, but no valid conveyance was made to the said Payne for the land, although in his lifetime various means were tried to obtain a title. ”

“ That possession was taken of the land in 1799 or 1800, and that it has been occupied ever since under the title of Payne; and that the taxes have been paid. That since the defendant has arrived at full age he commenced an action of ejectment, and recovered a judgment for the land; and the complainants pray an injunction, and that the defendant may be decreed to convey all his interest in the premises to the complainants.
In his answer the defendant denies that the bond set forth in the complainants' bill, was ever executed by his father, Isaac Coulson, and states that it is a forgery ”

“ The instruments under which a part of the complainants set up an equity derived from Payne's heirs are proved; but they cannot be sanctioned by this court, except where such instruments were executed by the heirs of full age. It is the duty of the court to protect the interests of minors ”

“ Gratz, 4 Wheat. 231, this court decided, 'that where a deed is more than thirty years old, and is proved to have been in the possession of the lessors of the plaintiff in ejectment, and actually asserted by them as the ground of their title in a chancery suit, it is, in the language of the books, sufficiently accounted for ”