Walden v. Bodley's Heirs. 9 H. unto the said Thomas Blair, his heirs and assigns, forever, and to their only proper use and benefit and behoof. And the said Benjamin Fitzgerald, for himself, his heirs, executors, and administrators, doth hereby covenant to and with the said Thomas Blair, his heirs, executors, and administrators, that in case the land hereby conveyed shall be taken or lost by any better or prior claim, that in that event the said Fitzgerald will refund to him, the said Thomas Blair, the purchase money thereof, without interest." C. The judgment of the circuit court as to the tract of land marked C was as follows: "The Waldens have not, however, limited their claim in this proceeding to the boundaries of the 400 acres of land which have been given as the limits of the lands recovered in the actions of ejectment, but have insisted that these judgments were for all the land within the patent of their ancestors, for 1,333 acres; and that, whether this position be sustained or not, they are entitled, on the decree and mandate of the supreme court, to have themselves put in possession of all the land within, and common to, the patent and entry of their ancestor, as established by the decree of this court, to which it is not shown some other person has the superior title; and they prayed on the hearing for process by which to have such possession delivered to them. Their prayer is overruled, and this proceeding dismissed as to Blair, and all the other parties, in respect to all the lands without the boundary of the land covered by the judgments in ejectment, designated on the plat as first herein stated. "It is, however, provided, that neither these orders, nor what may be done in consequence of them, shall prejudice the rights of any of the parties, or their representatives, in the above-mentioned actions of ejectment, or in the suit in chancery, of which this proceeding is a continuation, who are not now properly before the court. It is ordered that an account be taken of the improvements, and of the rents and profits and damages, of each of the three above-described parcels of land, of which, according to the above opinion, the Waldens are to have the possession. John C. Herndon is appointed the master for this purpose." It will be perceived by a reference to the mandate of this [* 45 ] *court, which is above recited, that the circuit court was instructed "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." It is necessary to refer to the ejectment suits to see what premises were recovered. Walden v. Bodley's Heirs. 9 H. The original ejectment, brought in 1797, was in very general terms, for 415 acres of land. After the substitution of Craig and Chapin as defendants, instead of the casual ejector, the court ordered a survey of the premises according to the claim and pretensions of the respective parties. The defendants took defence for all the land included within the locator's part, as will be seen by the following special case and judgment of the court. The letters A, B, C, D are represented in the plat in this statement by the figures 7, 8, 9, 10, and the letters E, F, G, C, by the figures, 1, 2, 3, 9. "And afterwards, to wit, at the June term of the court aforesaid, to wit, on the 19th day of June, A. D. 1800, the following special case was submitted to the court, by consent of the parties herein, by their attorneys. "The tract of land marked on the plat by the letters A, B, C, D, was duly granted to the said Walden, lessor of the plaintiff, by patent from the Commonwealth of Virginia, bearing date the 20th day of November, 1786. "The said Walden and Simon Kenton executed the agreement, marked A, respecting the locating of said lands; the said agreement is made part of this cause. "The defendants are in possession of that part of the tract marked on the plat by the letters E, F, G, C, and claim the said part of the said tract of land under the agreement A, and the indorsement thereon, and a division thereof made as certified by the report B; which report and indorsement on said agreement is also made a part of this case. "If, upon the whole, the court shall be of opinion that the legal title to the said part of the said tract of land marked on the plat as aforesaid by the letters E, G, C, F, is in the plaintiff, then judgment to be entered for him; if not, judgment to be entered for the defendants. "WILLIAM CLARK, Attorney for Plaintiff. THOMAS TODD, Attorney for Defendants. * "And the court, having fully considered and understood the said case, is of opinion, that the legal title to the said part of the said tract of land marked on the plat E, F, G, C, is in [ 46 ] the plaintiff, and was on the day of filing the declaration in this suit. "It is therefore considered by the court, that the plaintiff recover against the said defendants, Lewis Craig and Amzel Chapin, his term of and in the premises aforesaid, with the appurtenances, yet Walden v. Bodley's Heirs. 9 H. to come and unexpired, together with his costs by him in this behalf expended; and the said defendants in mercy, &c. "And on motion of the plaintiff, by his attorney, the United States writ of habere facias possessionem is awarded him in this suit, to cause him to have possession of the terms aforesaid, returnable to the next court." The judgment in ejectment in favor of Walden did not therefore include the tract of land marked C, or any land outside of the locator's part, for which only the defendants took defence. Thus far, the claim of the heirs of Walden, and the grounds of defence of the defendants, have been stated as to those parts of the tract of land which the circuit court refused to give to Walden's heirs. It remains now to state the proceedings of that court with respect to the parts of the tract which were given to those heirs, and which are designated upon the preceding plat by the letters, D, E, and F. The circuit court gave these lands to Walden's heirs upon certain conditions, which will be mentioned consecutively, and from this part of the decree Walden's heirs also appealed. D. The decree of the circuit court was as follows: "It therefore seems to the court that, on this proceeding against Benjamin Umstead, one of the complainants in the original bill, the heirs of Walden must have awarded to them the possession of the parcel of land designated, in the report of the surveyor filed herein at the present term, by the figures 2, 21, 22, 12, 13, 14, 16, 17, 18, 19, 20, 2, and as containing one hundred and forty-nine acres, twentyeight poles, now in his possession, when he, Umstead, shall have been paid the amount which the value of the improvements upon the land exceeds the rents and profits and damages thereof, or it shall be ascertained that there is no such excess on the account to be taken. It does not appear that Umstead has had the possession of any other part of the land since the commencement of these proceedings; and as to the residue of the land in the proceeding, it is dismissed, with out prejudice as to the parcel of land designated on the plat [47] by figures 21, 3, 22, and 21, containing, according to the surveyor's report, fourteen acres, two roods, and thirty-six poles, sold by Umstead, as represented in 1813, and now in the possession of the widow of William Craig." E. The decree of the circuit court with respect to this piece of land was as follows: "It seems to the court that the Waldens will be entitled, on the proceedings against the defendant, John N. Proctor, to have the possession of the land designated on the plat by the figures 15, 16, 17, Walden v. Bodley's Heirs. 9 H. 18, 19, 20, 15, and as containing nineteen acres, three roods, and twenty-eight poles, in his possession about the time of the commencement of this proceeding, but now in the possession of Jeremiah Wells. Proctor was not a party to the original bill, but he appears to have purchased this parcel of the land, and to have acquired the possession of it from Sandridge, one of the complainants in the original bill, pending the suit; and when the value of the improvements shall have been paid, or found compensated by the rents, profits and damages of the land, according to an account which will be taken, the Waldens will be entitled to an order for process of possession. It does not exactly appear when Wells acquired the possession of this land; but he is no party, and unless his position be such as to bind him, he shall not be concluded in respect to any right or claim he may show in respect to the matter to be effected." F. The decree of the circuit court with respect to this piece of land was as follows: "It seems to the court, that the Waldens will be entitled against the defendant, Thomas Blair, to have the possession of the land designated on the plat by the figures 4, 12, 13, 14, 4, and as containing fourteen acres, three roods, and eight poles. It is found in the possession of Blair, claiming to hold it by purchase from Pogue, one of the original complainants. He does not show when he made the purchase, or acquired the possession; and the fair conclusion is, that he obtained the possession pending the litigation. He must, therefore, surrender it when he shall have been paid the amount which the value of the improvements exceeds the rents and profits, with the damages, on the account which will be taken, or it shall appear that the result of such account must be against him." When this cause was here in 1840, it was held that, as Walden had been decreed to surrender possession, and make releases of his elder legal title to complainants for so much of the land in controversy as their better right in equity covered, the proper condition imposed on complainants by such decree in their favor was, that, having received their measure of equity, they were compellable * to do equity to the defendants; and *that, therefore, they [ 48 ] should be constrained to surrender possession to Walden's heirs of that part to which their ancestor had the better title; and as this had not been ordered by the circuit court in the decree made in 1834, (then before us on appeal,) it was so ordered by this court in 1840, as a proper addition to the decree made below; and the cause was sent down to have our mandate executed in this respect. In attempting to do so, it is insisted on part of Walden's heirs, that the circuit court erred to a material extent, and they have prosecuted Walden v. Bodley's Heirs. 9 H. their appeal to this court to correct the errors, and we are now called on to construe and execute our own mandate; beyond this, we have no power to go, more than the circuit court had. What that court ought to have done, it is our duty to do. The mandate directed the circuit court "to take such further steps in regard to the improvements, and to the putting of Walden or his representatives in possession of the premises recovered in the ejectment suits, as shall be conformable to the decrees hereby affirmed, and to the principles of equity." Beyond the land recovered in the ejectment, we have no power to act under this mandate; nor to those parts of the land recovered, which were, by the decree of 1834, vested in complainants and devested out of Walden. It follows, that the parcel on the plat marked C. 11, 30, 31, 32, 11, is not in the case now before us, it lying outside of the tract recovered in the ejectment suit; as to this parcel, the circuit court adjudged correctly, when executing the mandate, and therefore the decree is affirmed in this respect. The parcel as found on the plat marked A. 1, a, b, 4, 5, 6, 11, 1, next presents itself for our consideration. It was occupied by Kincaid, claiming in some form under John N. Proctor: and the circuit court held that Proctor had acquired the better title thereto, by force of the act of limitations, which had barred Walden's right to recover it; and therefore the claim on part of Walden's heirs to have possession thereof surrendered to them was rejected. And the inquiry is, Did the statute of limitations operate in Proctor's favor? Jonathan Rose took possession under Lewis Craig. Rose was sued in ejectment, and recovered against, in 1800. By some executory contract, Jonathan Rose sold to Jonathan H. Rose, before 1817; and the two Roses seem to have held a joint possession, until they sold to Proctor in 1826. He took possession in 1827, and the two Roses made him a joint deed in 1828. In May, 1824, the demise in the ejectment suit was extended to fifty years, commencing in 1789. The suit then stood as if the demise had been originally laid for fifty [ * 49 ] years. *Of this step, neither Jonathan Rose nor Jonathan H. Rose could legally or justly complain. Proctor came in by purchase in 1827, and Kincaid afterwards. Then the ejectment suit was in full force against all these parties. Nor is there any thing in the fact that Jonathan Rose took a deed from Bodley and Pogue in 1821, seeking shelter under their inferior title. And this reduces the inquiry to the question, whether Proctor and bound by the proceedings against Jonathan Rose? the legal title and right of possession. The ejectment suit was pending, and Walden delayed and hindered from obtaining the fruits of his judgment by the acts of Jonathan Rose; of this Kincaid were Walden had |