
    George Stephens v. James Cobun.
    [October Term, 1800.]
    Land Commissioners — Judgment of — Conclusiveness.— Tlie judgment of the board of commissioners, under the land law, is conclusive; and cannot be impeached.
    This was an appeal from a decree of the Hign Court of Chancery. The bill states, that John Stephens, in the spring of 1767, settled himself and family on Cobun’s creek, extending down the said creek below an agreed line, which was afterwards made, by the said John Stephens and Jonathan Cobun., so as to include 400 acres. That the said John Stephens built a house, and moved his family thither; clearing 10 acres, and raising a crop. That the said agreed line continued, as a boundary between Stephens and Cobun’s until four years after, when Stephens died; during which time, Stephens lived on the land, and raised corn. That his widow lived on the said land 5 or 6 years afterwards, with his family; and then sold it to Jonathan Cobun, who sold to James Cobun the defendant. That the plaintiff was then an infant, left by his mother, and supported by the bounty of his friends. That he was still an infant, when the commissioners sat; and, having no property, had no money to assert his right against the defendant, who then had the land in possession. T)hat one Henry Stephens did, indeed, inform the board, that the land belonged to the plaintiff, but, being poor and ignorant, he was unable to support the claim’ against the defendant; who x'apprized of it, brought forward the claim of Workman ; who had tomahawked a few trees, as Cobun said, on the land before said Stephens had settled there: By which means, the defendant obtained a certificate for the land. That Workman never had a residence in the country, except as a hunter; and if he marked any trees, it was for convenience as a hunter. It therefore prays, that the defendant may convey ; and that the plaintiff may have general relief.
    The answer states, that John Stephens did set down on the land in the bill mentioned ; and continued there, with his family, for some time: That both were wrongful; as Workman had previously improved and occupied the land; on which he had done work, as chopping and heaping brush; and that he had made some progress in building a house or cabin. But, going to remove his family thither, that said John Stephens intruded on the land and held him out. That the agreement of Stephens and Jonathan Cobun, as to the boundary line, could not affect Workman ; who was the true owner, if any could be at that early period, before legal rights were obtained. That Jonathan Stephens bought of Cobun’s widow, and afterwards of Workman. That John Stephens knew of Workman’s right, and offered £Z. for it. That matters lay thus, until the commissioners sat; when the defendant was cited before them, at the suit of the plaintiff, by Henry Stephens. That the claim was fully heard, and decided for the defendant. Denies any fraudulent application for the certificate, or that he bought of Workman, with a view to defraud the plaintiff. Says, that the defendant was threatened, by Lewis Rogers, with a suit founded on Workman’s right; and therefore he bought it, for a horse, which cost the defendant £22.
    ^Jonathan Cobun says, that in 67 or 68, Jonathan Cobun senr., and John Stephens settled on Cobun’s creek, and, after dividing the lands by an agreed line, the said John Stephens settled on that now in dispute. That each division was improved, but he does not know, which was' the oldest. That Lewis Rogers forbid John Stephens to settle on the said land, as Rogers and another had improved it, and had planted corn; although the deponent never saw any. However, that he did see some trees, which had been deadened, and some appearance of brush heaps, and the foundation of a cabin, two or three togs high. But does not know, if the whole or only a part of it was on John Stephens land. That he saw the letters T. B. on a honey locust in Jonathan Cobun’s improvement, supposed to have been made by Thomas Banfield; who claimed the land and gave up his right to Jonathan Cobun senior, previous to the division, between Jonathan Cobun and John Stephens. That the plaintiff and the defendant were present and consenting. That the plaintiffs mother gave bond to indemnify the defendant'against the heirs of John Stephens; and the deponent was security thereto. That the plaintiffs mother was daughter of Jonathan Cobun, deceased.
    Meredith says, that he had heard Workman say he had sold his right to John Stephens senior, for a quantity of liquor.
    Ramsay says, that he had heard Rogers say, he and Workman had improved three places in one day; and that Workman lost his gun. Upon which, they went away; and, on their, return, that Stephens and Cobun settled. After which Rogers expected to lose, and sold for a horse, which he said was better than nothing.
    A fourth witness says, that he had heard Workman say, if he could find his gun he would move away, as he did not like the country. That he did not understand that he had improved. That *the land in dispute, is that, which was improved by Banfield.
    Scott says, that John Stephens and Jonathan Cobun senr. settled on the lands, and made a dividing line. That Stephens cleared 4 acres, and raised corn.
    Evans says, that the plaintiffs mother was on the land; and that 4 acres were cleared.
    Banfield says, that he lay two weeks on the land; but not with intent to settle it. That he never claimed or sold it. That there were some small improvements, as brush heaps, deadened trees, &c. there, at the time; but does not know who had made them.
    Workman says, that he settled the lands.
    That there were brush heaps, and a house 3 or 4 logs high. That he planted corn; and began to clear a meadow. That he lost his gun and went away; leaving his crop in the care of Lewis Rogers. That he would have returned, but John Stephens, father of Geo. Stephens, had taken possession, and kept him out. That he sold his right to the said Rogers; which he would not have done, had he known of the commissioners sitting there. That some small time after he had left that country, the said Rogers alarmed him about the Pennsylvanians and their proclamation. That he never told John Sempson that he would not return. That he never said that the defendant was to pay him if he gained the suit; although he might have said that he was to pay the expense, he was at, in going to have depositions taken. That he never told Merrifield that he had given his right to John Stephens. That he never saw him. That Rogers told him that John Stephens had offered him £5. for the deponents right.
    Lewis Rogers speaks to the same effect as Workman; and says, that he bought of Workman and sold to the defendant.
    *C. Ratcliff says, that John Stephens drove a man off a piece of land as she heard; and that the said Stephens got on the land, in dispute.
    William Haymond says, that he was one of the commissioners. That Henry Stephens on behalf of the plaintiff, brought suit for the lands in dispute, which was decided in favor of Cobun because he had the eldest improvement, to wit, Workman’s.
    J. Ratcliff says, that he was present at the suit before the commissioners; and that it was decided in favor of Cobun ; who had Workman’s right:
    C. Ratcliff further says, that the trees were deadened. That there was part of a small cabin before John Stephens took possession ; but she knows not by whom it was put, further than that she heard Rogers say it was Workman’s. That Rogers, in Workman’s name, warned Stephens to go off the land. That Stephens refused, saying he had offered Rogers £3. for it. That she was present as a witness before the commissioners; who decided for Cobun.
    Decker says, that, about the year 1765, Stephens, Workman and Lewis Rogers improved two tracts of land, as the deponent has heard; one for his father, the other for himself. That he planted corn on both places. That the deponent, his father, and the said Workman left the county; and that Rogers left it some time after. That in about two years after, old Cobun and John Stephens came and settled on the said land. That Stephens never bought Workman’s right. That Rogers went off, on account of the Pennsylvania proclamation. That John Stephens claimed to a fence, but he does not know the agreed line. That he saw the corn planted by Workman.
    There are amongst the papers in the record, a copy of the judgment of the commissioners; and a copy of Cobun’s surveys.
    *The County Court decreed a conveyance to the plaintiff. The High Court of Chancery reversed the decree. 1. Because the plaintiffs ancestor had no title. 2. Because the judgment of the commissioners was final, notwithstanding the infancy of the plaintiff, as it had not been reversed by the General Court. Whereupon the plaintiff Stephens appealed to this Court.
    Randolph for the appellant.
    Upon the principles of equity and the evidence in the cause, the title was clearly in the appellant originally. Eor the transitory possession of Workman, if indeed it be true he ever had it, cannot be admitted to have conferred any right; or, if it did, he parted with it to Stephens. Therefore, unless the judgment of the commissioners, has barred his claim, he was clearly entitled to a decree for the land. But, as he was an infant and his case not fully before the board of commissioners, their judgment ought not to preclude him.
    
      Call contra.
    The merits, as well as the law of the case, are in favour of the appel-lee. Ror it is established, beyond controversy, that Workman made the first settlement and improvement. Therefore Stephens was an intruder on his right; and the weight of testimony is, that he never sold to any person but Cobun. The judgment of the commissioners is decisive ; for the law expressly declares that it shall be final. Chanc. Rev. 93. The appellant was plaintiff, by a person who acted as his next friend, before the commissioners, and appears to have been fully heard. Therefore he ought to be barred by the judgment: Ror afi infant plaintiff, when heard by his next friend, is as much bound by the judgment, as a person of full age. Besides it does not appear what testimony, was before the board; and, perhaps, much stronger evidence was adduced by Cobun on the merits, than appears in the present record. Ror, although, he has thought proper to adduce some '^testimony on the merits, he was not bound to do so; and therefore, if his testimony were defective, (which it is not,) yet that would not affect his case; because the judgment is conclusive, and cannot be impeached.
    But, for another reason, the decree of the Chancellor is right; namely, that Cobun and Rogers are no parties to the present suit; for not having passed any deed for their title, and their rights having been drawn into controversy, they ought to have been made parties. Buck v. Copland in this court. Which is the stronger in the present case, as their testimony is objected to on the ground of interest; and they ought certainly to be heard by answer or deposition.
    Cur. adv. vult.
    
      
      The principal case is cited and approved in Ross v. Keewood, 2 Munf. 146, 147; Baker v. Preston, Gilm. 289. See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Ante, 218.
    
   BYCXNS, Judge.

Delivered the resolution of the court, that the act of Assembly was conclusive; and that the decree was to be affirmed.

Decree Affirmed.  