Holliday v. Lauck
A plea for injunction, Holliday v. Lauck, November 6, 1801. Original in the John M. Woolsey Collection of Legal Documents, Special Collections, University of Virginia Law Library.
Document Text, 6 November 1801
To the Honourable the Judge of the High Court of Chancery Humbly complaining Sheweth unto your Honour, your Orator William Holliday that sometime in the year eighteen hundred, your Orator purchased in fee simple of a certain James Welsh one of the defendants herein after named a Tract of Land near the Town of Winchester in the County of frederick, containing one hundred and six Acres, for which your Orator agreed to give three thousand five hundred dollars. That in pursuance of this Agreement your Orator conveyed in fee simple to the said Welsh at the sum of seven hundred pounds that he also paid to the said Welsh the farther sum of one hundred pounds in Cash, and passed to him three several Bonds, two of which for one hundred pounds each, and the other for the Sum of fifty pounds. And your Orator further sheweth that the said Welsh on his part at the same time made to your Orator a Conveyance in fee simple for the Tract of Land abovementioned, having first assured your Orator that his Title was clear and indisputable, and that there no Mortgage or any Encumbrance whatever upon the said Land; and in order to confirm his assurances thus made as aforesaid, he the said Welsh exhibited a Letter written by a certain Thomas Rostas another offendant Owner of the said Land) to a certain Edward Smith Leaf who was an Agent of said Rootes, stating that he the said Rootes had sold the said Land to the said Welsh, and desiring the said Smith to give to the said Welsh, or if he the said Smith should have leased the said Land, that the Tenant should pay the Rest to him the said Welsh. And as a further confirmation to his assurances the said Welsh did moreover exhibit to your Orator a Deed from the said Rootes to himself in fee simple containing a general Warranty and also sundry Title to opens relation to the said Land which Letter, Deed, and Title papers were delivered by the said Welsh to your Orator. And your Orator further sheweth, that in as much as the said Deed from the said Rootes to the said Welsh had not been recorded, and that the Wife of the said Rootes had not been a Party to the said deed. Your Orator sometime afterwards requested the said Edward Smith to write to the said Rootes for the purpose of obtaining a new Deed in which Mrs Rootes should become a party, who accordingly did write to the said Rootes and received for Answer the said Rootes had a Lien upon the said Land to the Amount of twelve hundred and fifty pounds which was evidenced by a Mortgage from the said Welsh to the said Rootes bearing even date with the Deed from the said Rootes to the said Welsh, which Information when communicated to your Orator could not find to exist his Astonishment and Regret. And your
Orator further sheweth that during the Interval between his purchase made of the said Land from the said Welsh as aforesaid, and the time when your Orator made the discovery of the Fraud and Deception practiced upon him by the said Welsh which has been above stated the said Welsh who had previously contrasted an Account with a certain Peter Lauck, ^[sup]as your Orator has been informed and believes[/sup] assigned to the said Lauck, your Orators Bond for fifty pounds being one of those abovementioned to have been given by your Orator to the said Welsh in part of the Consideration for the Tract of Land aforesaid. And your Orator further sheweth that immediately after receiving Information from the said Edward Smith of the said Rootes having a mortgage from the said Welsh upon the said Tract of Land, which Information your Orator believes to be true, your Orator called upon the said Peter Lauck, informed him of the Fraud which has been practised upon your Orator by the said Welsh, and apprized the said Peter Lauck when your Orator prays may also be made a Defendant to this his Bill of Complaint of the equitable offence which your Orator should rely upon in order to extricate himself from the Payment of the said Bond, and at the same time admonished the said Lauck that he had better endeavor to obtain Satisfaction from the said Welsh, which your Orator well hoped the said Lauck would have done. But now So it is, May it please your Honour, that the said Peter Lauck (combining and confederating with the said Thomas Rootes, and James Welsh and with divers persons unknown to your Orator whose names when discovered your Orator prays may be inserted herein in the apt words to change them as parties) hath actually brought Suit in the County Court of Frederick upon the said Bond and having obtained a Judgment thereon hath issued an Execution thereon, altho your Orator is apprehensive from the prior Mortgage of the said Rootes and from the desperate Circumstances of the said Welsh that no Compensation can here be recovered for the Injury which your Orator hath already sustained, All which Actings and Doings of the said Lauck and his Confederates are contrary to Equity and good Conscience. In tender Consideration where of and for as much as your Orator is without Remedy in the premises at the Common Law, and is proper to be relieved before your Honour in a Court of Equity where frauds and Impositions are set aside and Evidences unduly detained are directed to be delivered up, and Matters of this Nature are properly cognizable. To the End therefore that the said Peter Lauck, James Welsh, and Thomas Rootes, and their Confederates when discovered, may full true and for fact Answer make to all and singular the promises as if the same wire here again repeated and interrogated. And especially that the said Thomas Rootes may upon his corporal Oath declare whether the Mortgage aforesaid from the said Welsh to him the said Rootes was really executed at the time
when it purports to bear date and if so whether the sum specified therein to be due from the said Welsh to him to the said Rootes does really and bonafide remain due? Whether the said Mortgage was recorded at the time of the Sale made by the said Welsh to your Orator? Whether he the said Rootes did not write the Letter first abovementioned to the said Edward Smith and of the purport beforementioned? and Whether at that Time the sd Rootes communicates to the said Smith any Information of his having a Mortgage from the sd Welsh of the said tract of Land? And that the said James Welsh may upon his corporal Oath declare whether when he sold the said Tract of Land to your Orator he did not assure your Orator that he the said Welsh had a clear and indisputable Title thereto and that there was no Mortgage or other Incumbrance thereor? Whether at the same time he the said Welsh did not exhibit to your Orator a Deed from the said Rootes to him the said Welsh, and also the Letter first above mentioned from the said Rootes to the said Edward Smith and sundry Title Papers relative the the said Land, and whether the 3d Deed, Letter and Title papers were not at the time of the Purchase made by your Orator as aforesaid, delivered up to your Orator? Whether the Mortgage now alledged by the said Rootes to have been executed by the sd Welsh to the said Rootes was actually executed at the time when it purports to bear date? Whether the sum therein mentioned to be due is really and bona fide due and was due when the said Mortgage was executed? Whether your Orator confiding in the Assurances of the sd Welsh did not convey a House and Lott in Winchester to the sd Welsh valued at seven hundred pounds pay him the sum of one hundred pounds in Cash, and give him the Bonds above mentioned as the Consideration for the purchase of the sd Land? Whether he the said Welsh did not assign one of those Bonds to the Defendant Peter Lauck to with the one for the sum of fifty pounds, and whether it was not in Consideration of a Debt, in whole or in part previously due from him the said Welsh to the said Lauck? And that the said Lauck may declare upon his corporal Oath. Whether your Orator did not immediately after he was informed of the deception committed upon him by the said Welsh inform the Lauck thereof and at the [unclear] apprize him the Lauck that your Orator would contest the Payment of the sd bond Whether the sd Welsh had not contracted an Account with him the said Lauck previous to his taking an assignment of the said Bond? What was the Amount of the Account? and whether the said Bond was not assigned wholly or in party to discharge the said Account? And that your Orator may either be quieted in the possession of the said Tract of Land purchased as aforesaid from the said Welsh notwithstanding the Mortgage claimed by the said Rootes upon the Ground that the Contract of the said Rootes, in concealing this Claim facilitated the Deception practised by the said Welsh upon your Orator and if so that the said Mortgage be cancelled. Or if not, that the said Welsh may be decreed to give unto your Orator the Conveyance made by your Orator for the House and Lott in Winchester as aforesaid, to refund the hundred pounds Cash which your Orator paid him at
the time of the purchase of the said Tract of Land with Interest thereon from that period and may deliver up your Orators Bond to be cancelled, and that the judgment aforesaid obtained by the said Lauck may be injoined until the Matter hereof be heard in a Court of Equity, Or that safely other decree may be in the Premises, as may be consistent with Equity and good Conscience May it please Your Honor to grant to your Orator the Commonwealth Writs of Subpoena and Injunction restraining the said Peter Lauck his Attornies or agents from all further proceedings upon the said Judgment Corporation of Winchester to with William Holliday the abovenamed complainant, this day appeared before me a Justice of the Peace in and for the sd Corporation, and made Oath that the Allegations herein contained, so far as he hath spoken of his own knowledge are true, and so far as he hath spoken from the Information of others he believes them to be true. Given under my hand this 6th day of November 1801. Josh Gamble The injunction is awarded on the usual terms, 14 of november, 1801. G. Wythe.