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Exhibits B, C, D. The depositions of witnesses as to the manner and terms of sale to Myers.

Exhibit E. The deed from E. Lawson to Myers, dated the 16th of December, 1811, conveying to him and his heirs, "all that piece or parcel of ground situate in the City of Baltimore, beginning on the west side of Holliday street, at the distance of 319 feet northerly from the intersection of the N. W. corner of East and Holliday streets, thence running easterly, parallel with East street, and binding on the north end of Holliday street, 35 feet to Back street or Holliday street united, thence N. binding on Back street or Holliday street united, 31 feet to lot No. 2, purchased by Mr. James Bosley, thence W. parallel with East street, and binding on lot No. 2, running 187 feet to North street, thence S. binding on North street 31 feet, thence E. with a straight line to the beginning, with the privi lege of an outlet through a ten feet alley at the back of lot No. 2."

Exhibit F. The deed between Bosley, S. & W. Farnandis and Myers, dated the 1st of July, 1815, reciting the deed from Mrs. Lawson to Myers; her deed to Bosley, and her deed to S. & W. Farnandis, and the deed from S. & W. Farnandis to Bosley, for part of the lot conveyed to them by Mrs. Lawson; also referring to a plot exhibited at the sale of the lots by Mrs. Lawson, delineating the two lanes or alleys each of the width of ten feet, the one of them ex480 tending nearly N. and S. parallel with Holliday and North streets, and at the distance of 100 feet easterly from the latter, passing through the whole extent of Mr. Lawson's ground, to wit, from the northermost line of the ground conveyed to S. & W. Farnandis, to the southern extremity or limits of, and passing through the ground conveyed to Myers; and the other one of the said alleys extending from North street at right angles, easterly, and between the

two parcels of ground fronting on the E. side of North street, conveyed to Bosley, to intersect the alley running parallel with Holliday and North streets, which said lanes or alleys were, at the time of the said sale, declared to be for the use and benefit of the purchasers of the ground, then offered for sale, and the remaining ground of Mrs. Lawson. Also reciting, that Myers had improved and built upon that portion of the alley extending from N. to S. to wit, the S. end of said alley, and which is comprised in the description set forth in the deed to him; "and in consideration of his agreeing to relinquish all right to the use of the residue of that alley, and the whole of the alley running from North street as aforesaid, they the said Bosley and Samuel and Walter Farnandis, have severally and respectively agreed to release to the said Myers, all their right and title to that portion of the said alley so as aforesaid improved and built upon by him." The said Bosley and S. & W. Farnandis did thereby, in consideration of the premises, and in consideration of one dollar a piece to them paid by Myers, bargain, sell, surrender, and forever release, to Myers, his heirs and assigns, "all the right, title, interest and claim whatever, of the said Bosley and S. & W. Farnandis, of, in and unto, all that portion of the aforementioned alley, comprised within the limits of the conveyance to the said Myers, and which hath been so as aforesaid improved and built upon by him; to have and to hold," &c. And the said Myers did thereby, in consideration of the premises, and of one dollar, &c. bargain, sell, surrender, and forever release, unto the said Bosley and S. & W. Farnandis, their heirs and assigns, "all the right, title, claim and interest whatsoever, of the said Myers of, in and unto, the two several alleys before mentioned, and the use of them respectively, except that portion of the 481 one of them so as aforesaid improved and built upon by him. To bave and to hold," &c. The injunction prayed by the bill was granted accordingly.

The answer of the appellant, (one of the defendants below,) denies the plot exhibited by the appellee to be correct, as the alley does not run in it through the whole length of the ranges of lots. He denies the understanding, that Myers should take in the alley in his ground, He refers to the depositions of Young and Myers, accompanying his answer, to show that there was no such understanding. He asserts that the lots of Myers sold at a higher price than others, not on account of taking in the alley, but because of their larger front on Holliday street, and being higher and better ground for buildingsome of the other lots requiring piling in order to build. He believes the alley between Myers' lots would prove a convenience in various ways. He avers that the conveyance to Myers, including the alley, was a fraud on the purchasers of the other lots; and he refers to Mrs. Lawson's bond of conveyance to Myers, given before her deed to him, in which the part of the alley is not agreed to be conveyed. He insists on his right of way by Mrs. Lawson's deeds

to him. He denies that he suffered Myers to build across the alley, except on condition of his leaving an opening underneath that might be closed with gates. That Myers built over the alley, and the discharge from his lots became offensive; that Myers then showed for the first time, to the appellant, Mrs. Lawson's deed, which surprised him; that Myers then, without being alarmed or threatened by the appellant, made the exchange of his right of way for the secure right of building over the alley. He denies that he agreed to let the water run from Myers' property through the alley, longer than the time necessary for Myers to raise the yard of his house, so as to let it off into Holliday street; and provided too, that it did not become a nuisance, in which event it was to be shut up at the appellant's discretion. That the appellee has a better outlet for the water through Belvidere street, and that the appellee admitted that fact before filing the bill. That the filth, &c. in the alley from the appellee's house, became offensive to the appellant's tenants. That they complained, and after sending * letters to the appellee, 482 &c. the appellant attempted to stop his use of the alley. That the water, &c. was not discharged in the appellee's time as it was while Myers was owner. That Myers had it to flow through a gate, by which means the outlet, &c. could be cleaned; but it was not so with the appellee's arrangements. That in the fall of 1821 the appellee built up the width of the alley, and had no outlet, except through a hole in the wall, and requested the appellant to permit the water to run down the alley until he could lay pipe to carry it into Holliday street. That when the appellee's work was done, the appellant requested him to stop the hole; but he would notthence the obstructions by the appellant, &c. He avers that the flowing of the water, &c. from the appellee's property, was a great nuisance.

Among the several exhibits of the appellant, accompanying his answer, is the deed from Myers to the appellee, dated the 7th of November, 1816, reciting the deed from Mrs. Lawson to Myers; and in consideration of $18,000, Myers conveyed to M'Kim, (the appellee,) and his heirs, all that piece or parcel of ground which was conveyed by Mrs. Lawson to Myers, by the said recited deed; "subject, however, to a contract between James Bosley, and Samuel and Walter Farnandis, and the said Myers, dated the 1st of July, 1815. To have and to hold," &c. "subject as aforesaid to the contract respecting said alley or outlet," &c.

The answer of James Biscoe, (one other of the defendants,) a purchaser from S. and W. Farnandis, is not material, he having no knowledge of the facts.

The answer of S. and W. Farnandis, (other defendants.) They deny the correctness of the plot exhibited by the appellee. They assert that the alley in the true plan run through the whole property. They deny that there was any understanding as to taking in

the alley. They state, as Bosley does, why Myers' lots sold highest. They deny that the deed with Myers as to the alley, &c. was obtained by threats, &c. but that it was executed by him deliberately, and full knowledge. They deny the pencil marks on the plot, &c.

The motion to dissolve the injunction was overruled by the County Court, and the injunction continued. Testimony was

taken

483 under an agreement of the parties; and a pro forma decree passed by the County Court making the injunction perpetual. From that decree Bosley, one of the defendants below, appealed to this Court.

The cause was argued at December Term, 1825, before BUCHANAN, C. J., EARLE, STEPHEN, ARCHER, and DORSEY, JJ.

Speed, for the appellant, contended, 1. That the deed between Bosley and Farnandis and Myers, by which Myers renounced his right to the alley, binds M'Kim, and bars his claim to the use of the alley. 2. That the said deed was fairly obtained from Myers, and for an adequate consideration. 3. That M'Kim cannot impeach the said deed for fraud or want of consideration. 4. That the Court has no jurisdiction in this case.

A

A compromise of a doubtful right, where no advantage is taken, is a valid consideration. 1 Pow. on Cont. 363; Cory vs. Cory, 1 Ves. 19; Cann vs. Cann, 1 P. Wms. 724; Stapilton vs. Stapilton, 1 Atk. 10; Taylour vs. Rochford, 2 Ves. 284; Gibbons vs. Caunt, 4 Ves. 849; Pullen vs. Ready, 2 Atk. 592. A right of way appendant, raised by operation of law, may be granted; though if raised by deed it cannot. 2 Blk. Com. 35. The covenants in the deed of compromise are sufficient to bind Myers, and all claiming under him, and among others, purchasers for valuable consideration with notice, and M'Kim had notice. Finch vs. Earl of Winchelsea, 1 P. Wms. 282; Freemoult vs. Dedire, Ib. 429. Equity will prevent a breach of a covenant. 1 Madd. Chan. 159, 162; 1 Fonbl. 345, 346. The privy cannot deny the force of the covenant. Taylor vs. Stibbart, 2 Ves. Jr. 437. grant will be construed a covenant. Curtis vs. Perry, 6 Ves. 745. The deed operated as an agreement in the recitals. The agreement is evidenced by the deed, and binds the parties. 1 Pow. on Cont. 313 to 316; Cannell vs. Buckle, 2 P. Wms. 243. The deed operates as an estoppel on the privies of Myers, both as respects its validity and its effect. Litt. 8. 58; Co. Litt. 352; Rawlin's Case, 4 Coke, 53, 56; Ferrer's Case, 6 Coke, 7; Blake's Case, Ib. 44; Winchester's Case, 3 Coke, 3. The Court has no jurisdiction of the case-a bill will not lie in a case like this. 1 Madd. Chan. 171, 172; 1 Harr. Chan. 124, 125; Lord Tenham vs. Herbert, 2 Atk. 483; Witchurck vs. Hilde, Ib. 391; Cowper vs. Clerk, 3 P. Wms. 156; Weller vs. Smeaton, 1 Bro. Ch. Rep. 573 Mayer, on the same side, cited Sugd. 22, 23; Powell vs. Edmunds. 12 East, 6; 1 Pow. on Con. 432; Co. Litt. 120; Bro. Ab. tit. Grant, pl. 130; 2 Roll. Ab. 46; Anon. 3 Salk. 40; Godley vs. Frith, Yelv. 159;

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Liford's Case, 11 Co. 47; Bro Ab. tit. Common, pl. 27, 28; Jacobson vs. Fountain, 2 Johns. 176; 2 Bac. Ab. tit. Covenant, (B) 65; Deering vs. Farrington, 1 Mod. 113; Litt. s. 446; Mason vs. Muncaster, 9 Wheat. 445; Eden on Injunc. 223; Co. Litt. 223 b; Rigden vs. Vallier, 2 Ves. 255; Thompson vs. Attfield, 1 Vern. 40; Crossing vs. Sudamore, 1 Vent. 137; Smith vs. Packhurst, 3 Atk. 135; Bagshaw vs. Spencer, 2 Ib. 570; Mosley vs. Mosley, 5 Ves. 248; Pomfret vs. Ricroft, 1 Saund. 321; 2 Fonbl. 46; 1 Ib. 253, 354, 355; Mestaur vs. Gillespie, 11 Ves. 625; Williams vs. Mayor, 6 H. & J. 529; Hollis vs. Carr, 2 Freem. 3; S. C. 2 Mod. 89; Saltoun vs. Houston, 1 Bing. 433; Severn vs. Clark, 2 Leon. 122; Graves vs. White, 2 Freem. 57; Van Bergen vs. Van Bergen, 2 Johns. Ch. 272; Gardner vs. Newburgh, Ib. 164; Van Bergen vs. Van Bergen, 3 Johns. Ch. 282; Corning vs. Lowerre, 6 Ib. 439; Storm vs. Mann, 4 Ib. 21; Pillsworth vs. Hopton, 6 Ves. 51; Davis vs. Leo, Ib. 784; Hanson vs. Gardner, 7 Ves. 308; Stevens vs. Beekman, 1 Johns. Ch. 318; Cooper's Pldg. 159; Birch vs. Holt, 3 Atk. 726. R. Johnson, on the same side, referred to Norway vs. Rowe, 19 Ves. 147; Caister vs. Eccles, 1 Ld. Raym. 683.

Marriott, for the appellee, cited Ardglass vs. Muskamp, 1 Vern. 237; Englefield vs. Englefield, Ib. 443; Chesterfield vs. Jansen, 2 Ves. 152; S. C. 1 Atk. 354; Hobart vs. Galley, 2 Atk. 34; Hawse vs. Wyatt, 3 Bro. Ch. 156; Mason vs. Armstrong, 13 Ves. 25; Gee vs. Spencer, 18 Vin. Ab. 370; Lucas vs. Adams, Ih.; Broderick vs. Broderick, 1 P. Wms. 239; Murray vs. Palmer, 2 Sch. & Lef. 474; Evans vs. Llewellen, 2 Bro. C. 150; 2 Pow. on Con. 200, 196; Lansdown vs. Lansdown, Mosely, 364; Hunt vs. Rousmamir, 8 Wheat. 214; Lammot vs. Bowly, 6 H. & J. 500; Whorewood vs. Simpson, 2 Vern. 185; Wat kins vs. Stockelt, 6 H. & J. 435; Wesley vs. Thomas, Ib. 24; Jones vs. Slubey, 5 H. & J. 372; Shep. Touch. 82, 240; 1 Thom. Co. Lit. 234, note D; Fitz. Ab. tit. Grant, 47, pl. 38; Bro. Ab. tit. Grant, pl. 130; Nevil's Case, 1 Plow. 381; 14 Vin. Ab. tit. Grant, (F) 45; 2 Thom. Co. Lit. 372, note R; Ib. 557, note K; 11 Vin. Ab. tit. Extinguishment, (C) 449; 1 Domat, 196, 199.

Wirt, (Attorney-General of U. S.) on the same side contended: 1. That the deed of compromise was void because obtained under circumstances which render it so. Fowkes vs. Joyce, 2 Vern. 129; 1 Madd, Ch. 263, 264; Cann vs. Cann, 1 P. Wms. 724; Lammot vs. Bowly, 6 H. & J. 500; Rook vs. O'Brien, 1 Ball & Beatty, 357.

2. That the deed was void at law, because its operation was in a right of way on a particular piece of land, which right could not be the subject of a conveyance. 2 Thom. Co. Lit. 551, note a. 3. That supposing the deed did convey the subject, Bosley's remedy was not to put up a wall, but to institute an action for damages. 4. That admitting the above grounds to be against the appellee, still the parol contract by Bosley that the water might pass until it should become a nuisance is to be respected. As to the point of jurisdic

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