Walden v. Bodley's Heirs. 9 H.

ejectment. On the ensuing day, being the 19th of November, the defendant's counsel moved to quash this writ, upon the ground, amongst other reasons, that it was irregular to issue the writ without a previous scire facias, because the judgment had been obtained twenty years before. On the 21st of November, the court quashed the writ.

In March, 1837, Walden sued out a scire facias to revive the judgment. Blair was made a defendant, as tenant in possession. The defendants demurred to the scire facias, and also pleaded nul tiel record. The court gave judgment for the defendants upon the demurrer and the plea, and the case was brought up to this court by a writ of error. It was decided at January term, 1840, and is reported

in 14 Pet. 147.

In the mean time, the bill filed in the circuit court by Bodley and others, in 1825, had ripened into a decree. After various proceedings, the circuit court, at November term, 1834, decreed, that Walden had the superior equity to all the land included within the double black lines, and numbered 23, 24, 25, 26, and that for other lands lying outside of these lines, and within the lines of his patent, he should execute deeds to the complainants.

Upon the subject of damage and waste, rents and profits, and improvements, the court appointed commissioners to go upon the land and make assessments.

At May term, 1836, the report of these commissioners was quashed, and other commissioners appointed.

This decree of the circuit court was appealed from by Walden, brought up to this court, and is reported in 14 Pet. 156. The decree of the court below was affirmed, and the cause returned with the following mandate:

"Whereas, lately, in the circuit court of the United States for the district of Kentucky, before you, or some of you, in a cause between Thomas Bodley's heirs, Robert Pogue's heirs, and others, complainant, and Ambrose Walden, defendant, the decree of the said circuit court was in favor of the said complainants, and against the defendant, as by the inspection of the transcript of the record of the said circuit court, which was brought into the supreme court of the United States by virtue of an appeal, agreeably to the act of congress in such case made and provided, fully and at large appears. And whereas, in the present term of Janu- [ 40 ] ary, in the year of our Lord one thousand eight hundred and forty, the said cause came on to be heard before the said supreme court on the said transcript of the record, and was argued

Walden v. Bodley's Heirs. 9 H.

by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decrees of the said circuit court be, and the same are hereby, affirmed, with the modification that this cause be and the same is hereby remanded to the said circuit court, with directions to that court to take such further steps in regard to the improvements, and to the putting of Walden or his representative in possession of the premises recovered in the ejectment suits, as shall be conformable to the decree hereby affirmed, and to the principles of equity.

"You, therefore, are hereby commanded, that such further proceedings be had in said cause as according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding.

"Witness the Honorable Roger B. Taney, Chief Justice of said supreme court, the second Monday of January, in the year of our Lord one thousand eight hundred and forty.

"WM. THOS. CARROLL,

Clerk of the Supreme Court of the United States."

Upon the receipt of this mandate, the circuit court took steps to execute it by granting leave to both parties to take depositions, ordering the surveyor to amend his survey, if necessary, and report matters of fact specially.

At November term, 1841, Walden's death was suggested, and a bill of revivor filed on behalf of his heirs, which included a prayer to revive the proceedings in the suit wherein Walden was defendant, to which the mandate referred, and also the proceedings under the crossbill which had been filed by Walden. Whereupon, subpoenas were issued to bring fifty-six parties into court, who were the representatives of Bodley, Pogue, and the other persons whose interests were opposed to Walden.

After another bill of revivor, and another amended bill, and sundry other proceedings, the cause came before the circuit court for final adjudication at May term, 1847. The court ordered the heirs of Walden to be placed in possession of several of the pieces of land claimed, but refused to give them those pieces marked upon the preceding plat with the letters A, B, and C. An appeal was taken from this decree by the heirs of Walden, and the correctness of this refusal by the circuit court was the question brought up by the appeal.

As each one of the tracts A, B, C, had a different defence, it will be necessary to enumerate them in order.

Walden v. Bodley's Heirs. 9 H.

•A. The judgment of the circuit court respecting this [* 41 ] tract was as follows, namely:

"It seems to the court that the heirs of Walden are not entitled to obtain, by this proceeding against John N. Proctor, the possession of the parcel of land designated on the plat of the survey by the letters and figures 1, a, b, 4, 5, 6, 11, 1; it was acquired of one of the complainants in the original bill, but at a time when there was no litigation pending. Jonathan H. Rose purchased this land in 1814 of Jonathan Rose, then in possession for upwards of seven years under a junior patent, and thereupon took possession, and resided upon it until he sold it to Proctor, the defendant, who resided upon it until about the time of the commencement of this proceeding, when he sold it to Kincaid, now in possession. And it seems to the court that the possession so held by Jonathan H. Rose, and his successor, Proctor, for upwards of seven years before the original bill in this case was filed, and upwards of twenty years before he was in anywise a party to any litigation concerning the land, does constitute a bar under the statute of limitations, and that this part of the case is within the exception of the decree and mandate of the supreme court, and that the Waldens are not, upon the principles of equity, entitled to have the possession of this part of the land; and therefore their bill and proceedings in respect to it are dismissed.”

It will be perceived by a reference to the plat, that the whole of this tract of land lies within both Walden's entry and patent, and also within what was called the locator's part. This court in 1840 decided that Walden's title was good to all the land included within his entry, namely, all included within the double black lines; and decided, also, that Craig's title, claimed under Kenton, the locator, was not valid. 14 Pet. 162. It remains to trace the title claimed under the defence of limitations.

The title adverse to Walden's is thus traced by the counsel for Proctor, the present occupier and claimant.

After the expiration of the demise in said Walden's declarations, namely, in the latter part of the year 1800, as your petitioner is advised, Rose, the tenant in possession, purchased the land claimed by said Walden from Bodley and Pogue, who claimed under a patent in the name of Tibbs and Co. for 10,000 acres of land, posterior in date to that of said Walden, and adverse thereto, for which he held the bond of said Bodley and Pogue for 131 acres, which bond was satisfied by the execution of a deed, September, 1821.

Between the years 1814 and 1819, and while the said demise *continued dead, your petitioner believes about the [ 42 ] year 1816 or 1817, said Rose sold by executory contract the

Walden v. Bodley's Heirs. 9 H.

said tract of land to his son, Jonathan H. Rose, and delivered the possession thereof to him; and the said Jonathan H. Rose continued on said land, and was in fact the terre-tenant at the date of the extension of the demise, namely, the 8th of May, 1824; and the said Jonathan H. had no notice or knowledge whatever of said extension, but the whole proceeding as to him was ex parte. And your petitioner states, that, during the year 1826, he purchased by bond of said Jonathan H. Rose, and took possession of said land in March, 1827; and shortly afterwards received a deed therefor from said Rose, without any knowledge on his part of the extension of said demise, and when, as he is advised, the title of said Rose had ripened into a complete estate.

The said Lewis Craig was not a terre-tenant, but was entered defendant with Rose on account of his sale to said Rose of the land in contest.

It was upon the 2d of July, 1827, that Jonathan Rose executed a deed, with special warranty, to Jonathan H. Rose; and on the 22d of February, 1828, Jonathan Rose and Jonathan H. Rose united in a deed to Proctor. The habendum of the deed was as follows:

"To have and to hold the land hereby conveyed, and the appurtenances, unto the said Proctor, his heirs and assigns, forever. The said Jonathan Rose only conveying, without warranty, a life-estate which he held by virtue of a lease from said Jonathan H. Rose; and the said Jonathan H. Rose, for himself, his heirs, executors, and administrators, the aforesaid tract of land and premises unto the said Proctor, his heirs or assigns, against the claim or claims of all and every person or persons whatsoever, so far as to refund the purchasemoney without interest in case said land should be lost by a better claim than the one thereby conveyed, does and will forever defend by these presents."

At the time of the last survey, this tract of land appeared to have passed into the possession of a person by the name of Kincaid; by what conveyance the record did not show.

B. The judgment of the circuit court with regard to the tract of land marked B, was as follows:

"It seems to the court that the heirs of Walden are not entitled to obtain, by this proceeding against Blair, the possession of the parcel of land in his possession, which is designated in the report of the

surveyor by the figures 15, 14, 5, 6, 11, 15, and as contain[ 43 ]ing fifteen acres, one rood, and seven poles. It was purchased, and the possession obtained, from one of the original complainants in the original bill, but there was no suit pending for it or against it, and its possession cannot be affected by any subsequent

Walden v. Bodley's Heirs. 9 H.

litigation between parties out of its possession. Tilton and Huston purchased it in the year 1813 of Robert Pogue, then in the possession, with his title under the junior patent, for upwards of seven years, and thereupon they took the possession; since which time it has been held in continued possession by them and their vendee, and his vendee, down to Blair, the defendant, now residing upon it; each and all holding adverse to Walden. And it seems to the court that this length of adverse possession, upwards of seven years before the original bill, of which this proceeding is the sequel, was filed, and upwards of twenty years before Blair, or any other person in possession, became in anywise a party to the suit, or to any proceedings in respect to it, does constitute a bar under the statute of limitations, and that this part of the case is within the exceptions in the mandate, and the bill and proceedings of the Waldens, in respect to this part of the land, are dismissed; and this disposes of all the land for which judgments were recovered in the ejectment suits."

The origin of Blair's title to this piece of land is thus stated by himself in his answer, in 1837, to the cross-bill, amended cross-bill, and bill of revivor, filed against him and others by Walden's heirs.

"This respondent has no personal knowledge whatever of the progress and movement in the various suits referred to, or of the derivation of Fitzgerald's title; but he is informed, and charges, that after the expiration of the demises in said Walden's declaration, and before the renewal thereof, that said Shockey sold the land in contest to Robert Pogue, who claimed it previously under the patent in the name of Tibbs, &c., for 10,000 acres of land, posterior in date to that of Walden, and adverse thereto; and said Pogue, who purchased in order to unite the conflicting claims in himself, then took possession of said land in contest, and continued the possession in himself until about the year 1814, when he sold the same to Tilton and Huston, who then entered and held the possession for two or three years, and then sold to Hambrick, who continued in possession until the demise was entered, and until he sold and delivered the possession of the same to your respondent."

In April, 1813, Pogue gave a bond of conveyance for this land to Tilton and Huston. In April, 1816, this bond was assigned to Hambrick, who assigned it to Fitzgerald. About the year 1829, Pogue gave a deed of it to Fitzgerald, and on the *20th [* 44 ] of September, 1832, Fitzgerald conveyed it to Blair by a deed, the habendum of which was as follows:

"To have and to hold the said tract or parcel of land above described, together with all and singular the privileges and appurtenances thereunto belonging, or in anywise appertaining to the same