The CHIEF JUSTICE
delivered the opinion of the court.
The first question we are to determine is as to the extent of our power over the several orders and decrees of the court below. The appellees claim that it is confined to an examination of the question of the return of the purchase-money paid upon the contract of April 6th, 1812, while the appellants insist that the appeal reaches back and includes the decree of September 24th, 1853, so far as it relates to that part of the case in which they are interested. All agree that our inquiries are limited to the Allen title. The King title was disposed of adversely to the appellees in 1853, and they have not appealed.
In 1853 the court determined that it would not decree a cancellation of the Allen deed, and would not order a specific performance by Vint of his contract. This determination it caused to be recorded, but at the same time declared that it could not then make a final disposition of the whole cause, because it did not have before it all the parties necessary for that purpose. In 1872, wheu the cause was ready for final hearing, the court accepted this recorded opinion
as settling the rights of the parties, so far as it went, and then proceeded to consider the question which had not been determined. Upon this hearing that question was decided against the complainants in the cross-bill, and then a final decree was entered denying the relief asked by the defendants. This ended the case in the court below.
Cases cannot be brought to this court upon appeal in parcels. We must have the whole of a case or none. The court below must settle all the merits before we can accept jurisdiction. Appeals will lie, as has been frequently held, when nothiug remains to be done except to enforce and give effect to what has been decreed, but until all the rights of the parties have been fiually passed upon and settled this cannot be the condition of a cause. Nothing must be left below when an appeal is taken but to execute the decree.
That was not the condition of this case in 1853. An appeal then would have left the question of the return of the purchase-money undetermined. The rights of the parties as presented by the pleadings were not all settled. The powers of the court belowT were not all exhausted. If the remaining question had been settled in accordance with the prayer of the cross-bill the present appellants might have been satisfied and the appeal saved.
We are, therefore, of the opinion that the decree of 1853 w’as not final so far as it respects the Allen title, and that the appeal brings up the whole of that part of the case for our consideration.
It is first insisted by the appellants that a court of equity has no jurisdiction of the case, and that for this reason the bill should now be dismissed.
So far as we can discover from the record, this objection is raisetd here for the first time. The transactions out of which this case arises occurred sixty-five years ago, or thereabouts. The estate of William King has been the subject of litigation in some form or other during all that time. This particular, suit was commenced thirty-six years ago and more. It is high time it was ended. At any rate, we
are uot inclined to add to its length of years by looking after mere form in order to avoid substance.
This brings us to the case upon its facts. The record is voluminous, but to our minds the controlling facts are few. In a court of conscience deliberate concealment is equivalent to deliberate falsehood. 'x When a living man speaks in such a court to enforce a dead man’s contract with himself against parties who he knows are ignorant of the facts, he must be frank in his statements, unless he is willing to take the risk of presumptions against him.
In this case Vint waited until both Allen and his wife were dead before he attempted in any manner to assert his claim. This he had the legal right to do. His laches is not a bar, but it is still a fact, and when it is remembered that some of the parties he is now pursuing were not born until after his rights, if any he has, accrued, this silent fact has all the effect of positive statement.
The rights of Samuel King’s heirs are not before us for adjudication, but the facts upon which their rights depend cannot easily be separated from those we must consider.
Allen and Vint seem to have been almost inseparable when the transactions we are to pass upon occurred. King was a man of intemperate habits. His brother, William King, from whom the property in controversy came, made provision in his will for the payment to him of the sura of $150 annually, so long as he lived, in ease he applied for it personally to the manager of the salt-works at Saltville, or the executor of the will at Abingdon, on the first day of January in each year. His personal receipt was required, and the payment for the year was to be forfeited if not called for on the day.
He lived in Kentucky, and Allen and Vint at Abingdon. His contract to sell to Vint bears- date January 1st, 1811. That was the day he was required to be at Saltville or Abingdon to receive his annuity. The contract was witnessed by Allen and wife, and the notes given for the purchase-money, all bearing that date, were witnessed by Allen.
The note first falling due was assigned by him to Allen on the 2d of January, 1811, the day after its date. From these admitted facts the conclusion is irresistible that King was in Virginia when the contract was made, and that Allen must have been cognizant of it, if not active in bringing it about.
In January, 1812, King W’as again at Abingdon. While there he staid at Allen’s house. In the month of February, or the forepart of March, he started for his home iu Kentucky. He stopped for the night at a house about sixty miles from Abingdon, and was never afterwards seen. He left his saddle-bags at the house where he stopped, and these were afterwards taken to Allen’s house and opened by Allen’s wife. When opened they were found to contain his clothing and a pocket-book. In the pocket-book were papers, but no money.
The deed from the Allens to Vint bears date November 16th, 1810, and was executed by Mrs. Allen on that day. It was not proved for record until May 7th, 1812. Its execution appears first to have been attested by three witnesses, and then, on the 27th April, 1812, at the request of Allen, by two more. The presumption is, therefore, that it had not been delivered before that time.
On the 6th April, 1812, Vint made his contract for the conveyance to Allen’s children of one-half of the property covered by the two deeds. On the next day Vint executed his receipt for the payment of $11,600, part of the purchase-money. Part of this payment consisted of nine out of the ten notes given by Vint for the purchase of the King interest. It cannot for a moment be doubted that Allen had no title to these notes, and that Vint knew it. So far as appears by the testimony none of them were indorsed when surrendered, and seven out of the nine were payable to the children of King. The disappearance of King caused much excitement at the time, and was extensively known. The persons at whose house he stopped for the night had been suspected of his murder.
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The CHIEF JUSTICE
delivered the opinion of the court.
The first question we are to determine is as to the extent of our power over the several orders and decrees of the court below. The appellees claim that it is confined to an examination of the question of the return of the purchase-money paid upon the contract of April 6th, 1812, while the appellants insist that the appeal reaches back and includes the decree of September 24th, 1853, so far as it relates to that part of the case in which they are interested. All agree that our inquiries are limited to the Allen title. The King title was disposed of adversely to the appellees in 1853, and they have not appealed.
In 1853 the court determined that it would not decree a cancellation of the Allen deed, and would not order a specific performance by Vint of his contract. This determination it caused to be recorded, but at the same time declared that it could not then make a final disposition of the whole cause, because it did not have before it all the parties necessary for that purpose. In 1872, wheu the cause was ready for final hearing, the court accepted this recorded opinion
as settling the rights of the parties, so far as it went, and then proceeded to consider the question which had not been determined. Upon this hearing that question was decided against the complainants in the cross-bill, and then a final decree was entered denying the relief asked by the defendants. This ended the case in the court below.
Cases cannot be brought to this court upon appeal in parcels. We must have the whole of a case or none. The court below must settle all the merits before we can accept jurisdiction. Appeals will lie, as has been frequently held, when nothiug remains to be done except to enforce and give effect to what has been decreed, but until all the rights of the parties have been fiually passed upon and settled this cannot be the condition of a cause. Nothing must be left below when an appeal is taken but to execute the decree.
That was not the condition of this case in 1853. An appeal then would have left the question of the return of the purchase-money undetermined. The rights of the parties as presented by the pleadings were not all settled. The powers of the court belowT were not all exhausted. If the remaining question had been settled in accordance with the prayer of the cross-bill the present appellants might have been satisfied and the appeal saved.
We are, therefore, of the opinion that the decree of 1853 w’as not final so far as it respects the Allen title, and that the appeal brings up the whole of that part of the case for our consideration.
It is first insisted by the appellants that a court of equity has no jurisdiction of the case, and that for this reason the bill should now be dismissed.
So far as we can discover from the record, this objection is raisetd here for the first time. The transactions out of which this case arises occurred sixty-five years ago, or thereabouts. The estate of William King has been the subject of litigation in some form or other during all that time. This particular, suit was commenced thirty-six years ago and more. It is high time it was ended. At any rate, we
are uot inclined to add to its length of years by looking after mere form in order to avoid substance.
This brings us to the case upon its facts. The record is voluminous, but to our minds the controlling facts are few. In a court of conscience deliberate concealment is equivalent to deliberate falsehood. 'x When a living man speaks in such a court to enforce a dead man’s contract with himself against parties who he knows are ignorant of the facts, he must be frank in his statements, unless he is willing to take the risk of presumptions against him.
In this case Vint waited until both Allen and his wife were dead before he attempted in any manner to assert his claim. This he had the legal right to do. His laches is not a bar, but it is still a fact, and when it is remembered that some of the parties he is now pursuing were not born until after his rights, if any he has, accrued, this silent fact has all the effect of positive statement.
The rights of Samuel King’s heirs are not before us for adjudication, but the facts upon which their rights depend cannot easily be separated from those we must consider.
Allen and Vint seem to have been almost inseparable when the transactions we are to pass upon occurred. King was a man of intemperate habits. His brother, William King, from whom the property in controversy came, made provision in his will for the payment to him of the sura of $150 annually, so long as he lived, in ease he applied for it personally to the manager of the salt-works at Saltville, or the executor of the will at Abingdon, on the first day of January in each year. His personal receipt was required, and the payment for the year was to be forfeited if not called for on the day.
He lived in Kentucky, and Allen and Vint at Abingdon. His contract to sell to Vint bears- date January 1st, 1811. That was the day he was required to be at Saltville or Abingdon to receive his annuity. The contract was witnessed by Allen and wife, and the notes given for the purchase-money, all bearing that date, were witnessed by Allen.
The note first falling due was assigned by him to Allen on the 2d of January, 1811, the day after its date. From these admitted facts the conclusion is irresistible that King was in Virginia when the contract was made, and that Allen must have been cognizant of it, if not active in bringing it about.
In January, 1812, King W’as again at Abingdon. While there he staid at Allen’s house. In the month of February, or the forepart of March, he started for his home iu Kentucky. He stopped for the night at a house about sixty miles from Abingdon, and was never afterwards seen. He left his saddle-bags at the house where he stopped, and these were afterwards taken to Allen’s house and opened by Allen’s wife. When opened they were found to contain his clothing and a pocket-book. In the pocket-book were papers, but no money.
The deed from the Allens to Vint bears date November 16th, 1810, and was executed by Mrs. Allen on that day. It was not proved for record until May 7th, 1812. Its execution appears first to have been attested by three witnesses, and then, on the 27th April, 1812, at the request of Allen, by two more. The presumption is, therefore, that it had not been delivered before that time.
On the 6th April, 1812, Vint made his contract for the conveyance to Allen’s children of one-half of the property covered by the two deeds. On the next day Vint executed his receipt for the payment of $11,600, part of the purchase-money. Part of this payment consisted of nine out of the ten notes given by Vint for the purchase of the King interest. It cannot for a moment be doubted that Allen had no title to these notes, and that Vint knew it. So far as appears by the testimony none of them were indorsed when surrendered, and seven out of the nine were payable to the children of King. The disappearance of King caused much excitement at the time, and was extensively known. The persons at whose house he stopped for the night had been suspected of his murder. Allen was poor, and in the summer following he and Vint were in jail together for debt. In the face of all these circumstances it is impossible to be
lieve that Vint told the truth when in his answer to the cross-bill of Findlay he stated that he received the notes “ as he believed from one who had a right to their possession, and whose right to transfer them to him was unquestionable.”
As has been seen, Allen’s deed could not have been delivered until after the 27th April, 1812. The presumption is, therefore, that payment for the property had not been made previous to that time. Allen was not a man to be trusted, even by Vint, with so large a payment as the nominal consideration required without a delivery of the deed. The deed had been drawn with great care, as the scrivener testifies, because the transaction was important. If the contract had been fully consummated in good faith at its date, there can scarcely be a doubt that the deed would have been at once perfected and proved for record. This, as we think, disposes of the theory that the property had been paid for by Vint with his stock of goods in 1810. Vint did not set up any such claim in any of his answers, and most assuredly he would have done so if it had been true. Besides that, no satisfactory testimony has been adduced in support of the claim. The only witnesses who testify upon the subject speak very indefinitely, and one of them makes some statements which are directly contradicted by well-established facts. In September, 1812, Vint himself stated, in an affidavit, “that on or about the 16th November, 1810, he purchased from Alien all his interest in the estate of William King, deceased, and after that, purchased from Allen all of the interest of Samuel King in said estate, for which he was to give and did give credit on a debt due from' him to affiant for $10,000.” There is nothing here about a payment in goods, and besides, according to the affidavit, the King purchase entered as much into the credit as did that of the Allen interest.
But still more important is the absolute refusal of Vint to disclose the facts in his answers when directly called upon to do so. It is true that'he need not make the statements unless he chose. The law under the form of pleadings in
this case did not compel him to be more specific, but it can raise presumptions against him if he is not. He may, if he pleases, rest his case upon the acknowledgment of payment expressed in his deeds, but if he does he must take the chances of being overcome by other facts and circumstances which repel the presumption arising from such evidence. In this case the circumstances are emphatic. He slept upon his rights for a quarter of a century; he waited for every actor in the premises except himself to die; in all the litigation affecting his interests he never appeared so long as there was one alive who could speak against him from actual knowledge of the facts, and during all the time he permitted his adversaries to assume and represent his title.
But we are not inclined to pursue this inquiry further. To our-minds it is clear that in April, 1812, when the transactions upon which the rights of the parties depend, were completed, it was well understood by all that the original interest of Mrs. Allen in the estate of her brother had been in some form secured to her children. It is quite possible it may also have been understood that Vint was to have a lien upon it by way of security for the payment of some debt owing to him; but it is certain, as we think, that it wTas never intended he should hold it as owner.
When, therefore, Vint came into court and asserted his absolute title as against the ignorant heirs of these deceased contracting parties, and wilfully concealed his contract for a reconveyance and the receipt which belonged to it, he came with unclean hands and must suffer the consequences. He does not excuse himself for this attempted fraud by pleading defect of memory, but claims boldly that he was not required to tell all he knew; that his duty was at an end when, selecting his own facts, he presented his own ease. It is true he had the right to select that way of coming into court, but having deliberately made his selection he ought not to be surprised if he finds that he is received with suspicion. Honesty of purpose prompts frankness of statement. Concealment is indicative of fraud.
If Allen and Vint were the only parties interested in this
controversy the case would be different. They have been partners in fraud and neither can claim a preference over the other on account of honesty of purpose or fairness in dealing. But Allen’s interest in the property was only that of a tenant for life. The real owner was his wife, and upon her death her children succeeded to her rights. It is the title of these children that Vint now attempts to defeat. By his own admissions in commencing his proceedings against them he concealed the truth. He thus in effect confesses that he relied to some extent for his success upon their ignorance. After years of groping in the dark, they were able to confront him with the facts and, as we think, to defeat the case he has attempted to make against them.
Decree reversed, and the cause-remanded with instructions to enter a decree dismissing the bill of the complainants and granting the prayer oe the cross-bill for a cancellation of the deed from Allen and wife to Vint.