LEE บ. TON. sell and make contracts for the sale of certain lands lying within this district. In pursuance of these powers, they had made contracts with Morris and Nicholson, MUNROE & who having advanced a considerable sum of money, were THORNin the habit of directing the Defendants from time to time, to convey certain of the lots which they had contracted for, to the persons named in such orders. The commissioners supposing that Morris and Nicholson had not yet received titles to land equal in value to the sum which they had advanced, told the Plaintiff that if he would obtain an order from them for certain lots, they should be conveyed to him. But in a day or two after, they discover that Morris and Nicholson had already received deeds for lots to the whole amount of the sum which they had advanced, and give notice of this fact to the Plaintiff, offering however to convey to him the lots in question, on his paying for them at the rate expressed in their contract with Morris and Nicholson. The Court will not inquire whether the Plaintiff really suffered any injury from the confidence which he placed in the commissioners, or whether he lost his remedy against Morris and Nicholson, (of which very serious doubts may well be entertained) but a majority of the Judges are of opinion, that the communication made by the commis sioners to the plaintiff, was altogether gratuitous, and that not being within the sphere of their official duties, the United States cannot be injured by it, and that the Defendants could not, without rendering themselves personally liable to the public, have made a title to the Plaintiff after a discovery of the mistake which they had made, but on the terms proposed by them; or in other words, that the United States could not, by any declaration of the commissioners proceeding from a mistake, lose the lien which was secured to them by the contract with Morris and Nicholson, for the stipulated price of this property. If the commissioners acted fraudulently, which is not pretended, they may be per. sonally liable in damages to the Plaintiff; but if it were a mistake, and such it is represented to be, the Court has already said that the interests of the United States cannot, and ought not, to be affected by it. Were it otherwise, an officer entrusted with the sales of public lands, or empowered to make contracts for such sales, might by inadvertence, or incautiously giving information to others, destroy the lien of his principals on very VOL. VIE 48 LEE v. valuable and large tracts of real estate, and even produce alienations of them without any consideration MUNROE & whatever being received. It is better that an individual THORN should now and then suffer by such mistakes, than to introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself. It is the opinion of this Court, that the decree of the Circuit Court be affirmed. TON. Courts of have concur Present.....All the Judges except TODD, J. ERROR to the Circuit Court for the district of Columbia, sitting at Alexandria, in a suit in Chancery Chancery brought by Richard Wren, and Susanna, his wife, who rent jurisdic- Was the widow of Lewis Hipkins, deceased, and John tion with and Westley Adams, her trustees, against W. Herbert, in cases of T. Swann, R. B. Lee, and W. B. Page, (trustees of dower, especi- Philip R. Fendall, deceased) and E. I. Lee, Jos. Deane ally where par- and F. Green. Courts of law, tition, disco very, or account is pray ed, and in cases The case was stated by MARSHALL, Ch. J. (in dcof sale where livering the opinion of the Court) as follows: the parties are willing that a sum in gross in lieu of dow er. This suit was brought by Richard Wren, and Susanshould be given na, his wife, formerly the wife of Lewis Hipkins, praying that dower may be assigned her in a tract of land If a devise of of which her former husband died seized, and which land in Vir has since been sold and conveyed to the Defendant, Joginia to the widow, appear seph Deane, or that a just equivalent in money may from circum- decreed her in lieu thereof. stances to be intended in lieu of dower, she must make her election, and cannot take both. The material circumstances of the case are these: be Lewis Hipkins being seized as tenant in common with Philip Richard Fendall of one third of a tract of her husband in land lying in the county of Fairfax by his deed exe If a wife join cuted by himself and wife, leased the same to Philip HERBERT Richard Fendall for the term of thirteen years, to com- & OTHERS mence on the first of September, in the year 1794, at the annual rent of 1401. WREN & OTHERS. In the year 1794 Lewis Hipkins departed this life, having first made his last will and testament in writing, a lease for in which he devised both real and personal estate to his years she is wife the real estate for her life, with remainder to his dower in the three daughters. still entitled to rent. To his two sons he devised the premises in question, not allow a and added that if, during the minority of his sons, Phi- part of the purchase molip R. Fendall should erect thereon another water mill ney in lieu of dower, when or water mills, his desire was that his sons or the sur- the estate is vivor of them should, at the expiration of the lease for sold, unless by years made to the said Philip pay one third part of the consent of all value of such mill or mills, and in default of payment rested. that P. R. Fendall should be permitted to hold the same at the present rent until the value should be received. He directed his two tracts of land in Loudon to be sold for the payment of his debts, and appropriated the annual rent accruing on the lands leased to P. R. Fendall to the education and maintenance of his children. The testator then adds the following clause; "If it should so happen that the remaining part of my estate not herein bequeathed should prove insufficient to pay all just demands against my estate, then my will and desire is that my executors shall sell as much of my real and personal estate as may be necessary to make up the deficiency, and that they shall sell such parts as will divide the loss among my representatives as nearly as may be in proportion to the property bequeathed to them and each of them." On the 13th day of December, in the year 1797, Susanna Hipkins, then the widow of Lewis Hipkins, conveyed her dower in the premises in question and also in the land devised to her for life by her deceased husband to the Plaintiffs, John Adams and Westley Adams, in trust for her use. parties inte บ. HERBERT In the year 1803 P. R. Fendall and Walker Muse in& OTHERS stituted a suit against the executors and children of Lewis Hipkins, deceased, and in the month of June in that year the cause came on to be heard by consent of & OTHERS. parties, when the Court decreed that the whole estate of Lewis Hipkins be sold and the money brought into Court. WREN The report of the sale does not appear on the record, but an entry was made that the report was made and confirmed by the Court. Under this decree the premises were sold and conveyed to the Defendant, E. I. Lee, who purchased in trust for P. R. Fendall, one of the executors of Lewis Hipkins. On the deed of conveyance is a memorandum stating that the property was sold subject to dower. Lee conveyed the premises to the other Defendants, trustees of P. R. Fendall, for the purposes of a trust deed which had been previously executed conveying to them the other two thirds of the same estate on certain trusts in the deed recited. The trustees sold and conveyed to the Defendant, Joseph Deane. The bill states that the Defendant, Joseph Deane, had not paid the purchase money, and was willing, should the Court decree dower in the premises, to give an equivalent in money in lieu thereof. Soon after the trust deed from Susanna Hipkins to John and Westley Adams she intermarried with the Plaintiff, Richard Wren. Philip R. Fendall continued to pay the Plaintiff, Susanna, during her widowhood, and the Plaintiffs, Richard and Susanna, after their intermarriage, one third part of the rent accruing on the premises devised to him by Hipkins and wife until the year 1803: since which he has refused or neglected to pay the same. The Defendants, the trustees of Philip Richard Fendall, he having departed this life previous to the institution of this suit, insist, 1. That the remedy of the Plaintiffs, if they have HERBERT any, is at law, and that a Court of equity can take no & OTHERS jurisdiction of the cause. v. WREN 2. That the provision made by the will of Lewis Hip- & OTHERS. kins for the Plaintiff, Susanna, not having been re-. nounced by her, bars her right of dower in his estate. The Defendant, Joseph Deane, has put in no answer, and as against him the bill is taken as confessed. The Circuit Court determined that the claim of the Plaintiff, Susanna, to dower was not barred, and decreed her a sum in gross as an equivalent therefor. From this decree the trustees of Philip Richard Fendall have appealed. The Plaintiffs also object to so much of the decree as refuses them rent on the premises, and have therefore taken out likewise a writ of error. E. I. LEE, for the Plaintiffs in error. 1. If the Complainant, Susanna, has any right of dower, her remedy was in a Court of law. In a suit in Chancery, if a question of dower arise, and the right of dower be denied, a Court of equity will send it to a Court of law to be tried. The Courts of the United States are forbidden by law, to exercise Chancery jurisdiction in a case in which there is a remedy at law. A Court of equity takes cognizance of no case of dower which does not involve some peculiar ground of equity: such as discovery, partition, account, &c. Here was no prayer for discovery, nor partition, and although an account was prayed, yet it was unnecessary. 1 Fonb. 19. 1 Br. C. C. 326. 3 Atk. 130. Dormer v. Fortescue. 2 Br. C. C. 631. 2 Vez. Jr. 124. 2. She had no right to dower. Her husband, Hipkins, had devised to her an estate for life, which appears, by the various provisions in his will, to have been intended to be in lieu of dower. The lands out of |