James Galloway, Junior, Appellant v. Henry R. Finley and David Barr

APPEAL from the circuit court of the United States, for the western district of Pennsylvania, in the third circuit. The appellant filed his bill on the 19th of October, 1835, stating, that on the 11th of March, 1835, he entered into an article of agreement with David Barr, acting as attorney for his wife, Elizabeth Julia Ann, who thereby became a party to the same. The agreement stated that Charles Bradford, late of Pennsylvania, obtained for his services as an officer in the Virginia continental line, a land warrant, No. 4467, for 2666 acres of land, which was entered, surveyed, and patented in three surveys in the Virginia military district, in Green and Brown counties, in the state of Ohio. That Charles Bradford died intestate, leaving four children, two of whom died without issue, and intestate, leaving Henry R. Finley, and Elizabeth Julia Ann, his only surviving heirs. Elizabeth Julia Ann married John Finley, and died, leaving two children, Henry, and Elizabeth Julia Ann, who are the only heirs of their mother, and are entitled to one undivided half of the said military land. That Henry R. Finley, and Elizabeth Julia Ann, the wife of David Barr, sold to the complainant an undivided moiety of the two surveys in Green county, in consideration of an agreement to pay eight thousand dollars; of which one thousand dollars was paid, and notes given to Henry R. Finley, and to the wife of David Barr, for the residue due, payable in equal instalments, in one, two, and three years; viz., on the first of January, 1837, 1838, 1839. The defendants, and the wife of Barr, covenanted that they were the persons they represented themselves to be, and that they were seised and possessed of a good legal title to the lands they sold to the complainant; and bound themselves, their heirs, &c., to make him, his heirs, &c., a good title in fee simple, as soon as he should pay the purchase money. That defendants asserted they had in possession the evidences of the title of defendant, Finley, and the wife of Barr, to the land; and that a letter of attorney had been executed and acknowledged by Barr's wife to himself, authorizing him to sell and convey her title in the land; that they had then just discovered that they had not brought these papers with them, and to induce appellant to close the contract, promised to send him the papers as soon as they should return home: confiding in the existence of the papers, and the promise to forward them to him, he concluded the agreement. The complainant says he paid down the one thousand dollars, and one hundred and four dollars; the latter credited on the last note. That since the date of the contract, Barr's wife has died intestate, and without issue, being a minor at her death. That defendants have not produced their title papers, nor letter of attorney. That defendants cannot perform their contract, nor make a good title to the land, because Charles Bradford died in 1789; and the lands were entered in his name, on the 19th of April, 1793; and the tract of one thousand acres was surveyed the 14th of February, 1794: and the survey of the tract of twelve hundred acres, was made the 24th of March, 1794: the entries and surveys being made about four years after his death.