
    *Carter’s Trustees v. Washington and Others.
    Saturday, April 16, 1808.
    Ejectment — Evidence-Decree ot Partition. — R. 0. and others being tenants in common of certain lands, an d E. O. having sold a part thereof to II. W. and others, a decree for partition obtained by the other tenants against E. O. in a suit commenced subsequently to the sale, is no evidence in their favour in an action of ejectment brought by them against the vendees who were no parties to the suit for partition.
    This was an action of ejectment brought in the year 1799, in the District Court of Dumfries, by Charles Carter, late of Shirley, against Edward Washington and others,, for a tract of land lying on the Occoquan River, formerly in the County of Stafford, now in Fairfax, containing 3500 acres.
    On the 2d day of March, 1729, the proprietors of the Northern Neck, by their patent of that date granted to Robert Carter, junior, and to his heirs and assigns for ever, the above tract of land. An indenture quinqué partite was executed on the 4th day of November, 1731, and recorded in the General Court on the 11th of the same month, between Robert Carter, of Curroto-man, the said Robert Carter, junior, of Nominy, Charles Carter, of Urbanna, John Carter, of Shirley, (as guardian for and in behalf of all the sons of Mann Page, of Rose-well,) and Judith Page, widow of the said Mann Page; in which indenture a recital was made of certain articles of agreement, bearing date on the 14th day of October, 1728, between the said Robert Carter the elder, Mann Page, Robert Carter the younger, and Charles Carter; the purport whereof was, that a tract of land adjoining Frying-pan Run, containing 762 acres, upon which there was supposed to be a mine of copper, having been granted, by patent dated the 14th of October, 1728, to the said Robert Carter the younger, and the said Charles Carter; and several warrants having been issued in their names for the surveying and taking up sundry other tracts of land, and for carrying on, improving and working the mine or mines that should be found thereon ; it was agreed by the said parties, that all and each of the said tracts should be held and enjoyed equally between them, and that equal proportions or parts ot the said lands, by good and sufficient deeds, should be *made over by the said Robert Carter the younger, and Charles Carter, to the said Mann Page and Robert Carter the elder, their heirs and assigns for ever; and, that as well the land which had been, as that which should ■ thereafter be, taken up, should be held by the above four persons as tenants in common. The said indenture recited further, that certain other articles were, on the 25th day of February, 1729, entered into between the said Robert Carter, junior, and Mann Page, by which it was agreed, that all the lands which had lately been surveyed by John Warner, for the use of the Company, mentioning particularly the aforesaid tract on Occoquan River, should be granted to the said Robert Carter, junior, and that he should give his bond to reconvey the same to the said Company. The said indenture went on to state, that patents had been issued for about 19,385 acres, in pursuance of the said articles of agreement to the said Robert Carter the younger; among which is that of the said 2d day of March, 1729, for the 3,500 acres of land aforesaid; and that Mann Page had devised his interest in the said adventure to his wife and all his sons. It was then covenanted by the said indenture, tnat all the tracts of land which had been granted to the said Robert Carter the younger, should be held by him in trust for the parties to the aforesaid agreements; one fourth part thereof in trust for Robert Carter the elder, and his heirs; one other fourth part thereof in trust for the said Charles Carter and his heirs; and one other fourth part thereof in trust for Judith Page, the widow, and all the sons of the said Mann Page, according to the several interests and estates of the said Judith Page, and the said sons of Mann Page. The said indenture contained other covenants and stipulations as to the manner of carrying on the works, and concerning the negroes; and also one, that, whenever the parties, their heirs or assigns respectively, should think fit to give over the undertaking aforesaid, then it should be lawful for them to hold their respective parts of the said lands in severalty, and to have partition thereof made accordingly.
    *In the year 1794, a suit was commenced in the High Court of Chancery by Charles Carter, of Shirley, and others, representatives of the said Robert Carter* the elder, of Mann Page, and of Charles Carter, against Robert Carter, late of Nominy, (who was son and representative of the said Robert Carter the younger,) for the purpose of obtaining an account and division of the property real and personal, which had been, according to the aforesaid articles of agreement, and by the said indenture, conveyed and vested in the said Robert Carter the younger. The Chancellor appointed commissioners to divide and allot the said property, which they did, allotting to Charles Carter, of Shirley, one fourth part of all the said lands, and comprehending in his share the 3,500 acres of land first above mentioned. On the report of the commissioners it appeared, that the share so allotted to Charles Carter, or the greater part thereof, had been before that time sold to others by the defendant, Robert Carter, and was held in possession by a number of persons claiming under him; and the counsel for the said Robert consented, before the Court, that the fourth so incumbered should be decreed to the said Robert, who would be thus enabled to support his own conveyances; and that the fourth allotted to him should be decreed to the said Charles. This decree, however, was not final, as accounts remained unreported between the parties; and an affidavit on behalf of the said Robert, made by one Benjamin Dawson, (stating that his counsel, who had agreed to the exchange of lots as aforesaid, had done so by mistake, and without authority,) being introduced, the Chancellor rescinded so much of his decree as confirmed the said exchange, and decreed the fourth part, including the lands in dispute, (according to the first allotment,) to Charles Carter, who thereupon brought his action of ejectment against the persons in possession.
    On the trial of the cause, the plaintiff produced in evidence to the Jury the aforesaid patent of the 2d of March, *1729; a copy of the indenture of the 4th of November, 1731; (the defendants having agreed that the latter should be considered of the same authenticity as if it had been certified by the clerk of the General Court;) and also a record of the proceedings and decree in the suit in Chancery aforesaid, for the purpose of proving that the lands mentioned in the said indenture had been partitioned between the parties mentioned in the said record, and that the lands in dispute had been allotted to the lessor of the plaintiff. ‘ ‘The District Court, upon an objection being made by the defendant’s counsel, refused to permit the said record in Chancery as evidence against the defendants in this suit: it appearing in evidence to the Court, that the defendants, and those under whom they claim, had been in possession of part of the land mentioned in the said record, (being the lands in the declaration mentioned,) ever since the year 1762, under a deed of conveyance in fee-simple made by Robert Carter, the defendant in the said suit in Chancery, to John Semple, that the said John Semple afterwards mortgaged the said premises in the declaration mentioned to Philip Dud-well Dee, which mortgage was foreclosed by a decree of the High Court of Chancery, and sold by virtue thereof in the year 1788, and purchased, and a title acquired thereto by the defendants, and those under whom they claim, at said sale;” to which opinion of the Court the plaintiff filed a bill of exceptions.
    The defendants also objected to the admission of the above-mentioned copy of the indenture as evidence, alleging that the original was not such an instrument as by law was directed to be recorded: but the Court overruled the objection; whereupon they also filed exceptions.
    The Jury found a verdict for the defendants; and judgment being accordingly entered for costs against Charles Carter, the lessor of the plaintiff, he took an appeal to this Court; which having abated by his death, was revived by Robert Randolph and Carter Berkeley, trustees appointed, *in his last will and testament to the uses therein mentioned. .
    Warden and Call, for the appellants'.
    Botts and Edmund I. Dee, for the appel-lees.
    On the part of the appellants it was contended, 1. That the deed of 1731 vested the title in Robert Carter as a trustee only; that there was no adverse possession until 1762 ; that then, the deed to Semple, being a deed of bargain and sale, did not convey an adverse possession; such a deed conveying no greater estate than the bargainor possesses; that a tenant in common by such a deed can convey his own part only; that a feoffment has a different effect, because it operates a disseisin, by entry and livery of seisin; that a fine of recovery is equivalent to a feoffment in this respect; but all other conveyances, by statute, or otherwise, do not operate a disseisin,  which must be an actual ouster; for a wrongful possession may be without a disseisin ; and even the taking possession under a judgment in ejectment does not operate a disseisin, which always implies a wrong- — a personal injury,  The statute of limitations therefore did not bar this ejectment; for it never runs against a man, except when he is actually disseised,  Again, Robert Carter, by virtue of the deed of 1731, held no possession of more than his share as tenant in common, except as trustee for a special purpose ; for that deed was a covenant to stand seised to the use of his partners and himself, and the statute transferred the uses into possession. Each tenant, under that deed, legally had the seisin of his own share; and Robert Carter, not being possessed in severalty, of the part which he .sold to Semple, could not convey it to him by deed of bargain and sale,  Charles Carter, therefore, claimed under the old deed as tenant in ‘common; and one tenant in common may maintain ejectment against another, or against any other person, to recover his social possession.
    2. The record of the suit in Chancery ought to have been admitted as evidence; because Washing-ton and others, though not parties to that suit, were privies; since they derived their titles from Robert Carter, and might, if the decree had been in his favour, have used it against Charles Carter and the other complainants. The case of Dee v. Daniel, executor of Cook, shews that judgments may be evidence against all who are privies; and it is a rule that, if a judgment between certain parties may be used as evidence against a man, he may avail himself of a judgment between the same parties, if it make in his favour.
    On the part of the appellees it was said, that it does not follow, because a bargain and sale conveys only the legal title of the bargainor, that it cannot operate a dis-seisin. The act “providing that wrongful alienations of lands shall be void so far as they are wrongful,” declares that no •conveyance shall carry more than the legal title of the persons conveying. If, therefore, the doctrine contended for on the other side were correct, no conveyance could operate a disseisin. By the act “for regulating •conveyances, ” almost all distinction between bargain and sale and feoffment is done away; and no distinction in practice exists between them; for, now, whenever a man sells his land, he makes a deed of bargain and sale, and delivers possession.
    The statute of limitations, therefore, barred the plaintiff’s claim. There was no trust in Robert Carter to prevent this. He was indeed a trustee until the deed of 1731; but, upon that deed, the statute executed the trust by transferring the use. It was a deed of conveyance: and hence the recording of it was legal. If it was not a deed of conveyance, the record of it was unau-thorised and void. All this is admitted on the other side. Yet it is said that Robert Carter continued to be a trustee of the land. The trust could not be executed, and yet continue; nor could "'there be a trustee without an existing trust. From the first conversion of the profits to Robert Carter’s own use, he became a de-forceant of the estates of the other tenants in common. A deforcement by one tenant in common, consisting in his receiving all the rents for 20 years, claiming the whole and denying the title of the other tenants, is evidence of an ouster, and will bar an ejectment on behalf of the ousted tenants,  If Robert Carter had died after this deforcement, having peaceably received the profits five years, the descent would have tolled the entry of the other tenants and barred an ejectment. A descent was certainly cast before 1762; and more than 20 years had then elapsed; so that, on both grounds, the ejectment was barred before the sale to Semple. That sale gave a more decided character to the adverse possession, and constituted in every respect a disseisin de facto. It is not settled, however, that an adverse possession is necessary to bar an ejectment. The word “adverse” is applied, by all the books, only to the 20 years’ possession of the lessor of the plaintiff. If the heir fails to enter on his inheritance for 20 years, he cannot enter to eject an occupant even of one year only. In every point of view, therefore, the possession being unconnected with a trust, and coupled with one or more descents, and an actual disseisin, and having continued more than 60 years, would not only bar an ejectment, but a writ of right.
    On the main question whether the record for the Court of Chancery was properly rejected or not, the counsel insisted that it was a principle of universal justice that a man shall not be affected in his interests by a decree, against which he had no opportunity of being heard and of exhibiting testimony. A case could not well be conceived, in which all the reasons of this rule applied more strongly, than in the present. The rule that judgments or decrees are binding on parties and privies, must be construed, according to rational principles, to mean, that, after a title is established by a judgment, it is evidence as to all persons deriving title subsequently, under any of the parties, but not as to persons deriving title before the suit was commenced, (as in this case,) *from either of those who were afterwards parties. A contrary doctrine would lead to innumerable frauds,  It would seem that the counsel who offered the record was sensible that it could not be evidence against the title of the defendants; for he limited the object of introducing it to proof of the partition and allotment, of the lands in controversy, to the lessor of the plaintiff. No partition could be binding on the appel-lees unless they were parties to it. It was as necessary that they should be heard in the cause for partition, as it would have been for Robert Carter to have been heard, if the suit for partition had been brought before he sold the estate. This professed limitation of the object of the evidence was a mere pretext to get the decree before the Jury. If it was to affect the'.rights of the defendants in any way, it was inadmissible. If it was to affect them in no way, it was impertinent to the inquiry, and for that cause was properly rejected, 
    
    
      
       1 Burr. 93, Taylor, lessee of Atkins, v. Horde; Litt. s. 600, 607, 609, 610, Hardr. 410, Edwards v. Sleater.
    
    
      
       Cowp. 693, Doe v. Horde.
    
    
      
       Ibid. 701.
    
    
      
       5 Burr. 2607, bairclaim. on tile demise of ICmpson, v. Shackleton.
    
    
      
       Tabb v. Baird. 3 Call, 475; Duval v. Bibb, ib. 362; M’Lean v. Copper, lb. 367.
    
    
      
       1 Wash. 806.
    
    
      
       Rev. Code, vol. 1, p. 17, c. 13.
    
    
      
       Rev. Code, vol. 1, p. 159, sect. 14.
    
    
      
       Earl of Sussex v. Temple, 1 Ld. Raym. 312; Doe on the demise of Fisher, &c. v. Prosser, Cowp. 217, 3 Peake. 309, 10.
    
    
      
       Peake’s Law of Evidence, 88.
    
    
      
       Lee v. Tapscott, 2 Wash. 280.
    
   Thursday, May S. The Judges pronounced their opinions.

JUDGE} TUCKER.

This was an eject-

ment; the plaintiff claiming under a covenant to stand seised, entered into about the year 1730, between Robert Carter of Nominy, and the father of the plaintiff, and others to their use as tenants in common in fee-simple ; and under a partition actually made under a decree of the High Court of Chancery between Robert Carter, jun. and the plaintiff in ejectment, and the other tenants in common, by which the premises were allotted to the lessor of the plaintiff; and the defendants under a conveyance in fee-simple from the last mentioned Robert Carter to one Semple, who mortgaged the premises to Lee, which mortgage was foreclosed, and the lands sold under the decree, and purchased by the defendants and these under whom they claim. Upon the trial the record of the partition made between the tenants in common under a decree of the High Court of Chancerv, was offered to be read in evidence by the plaintiff, but rejected *by the Court, because it appeared to them that the defendants had been in possession of the premises ever since the year 1762, under the conveyance from R. C. jun. to J. Semple.

I have entertained very considerable doubts upon the only question of any importance arising in this cause; namely, the admissibility of the record of partition between Robert and Charles Carter, and the other tenants in common, upon the trial of this ejectment, inasmuch as neither the defendants, nor any person under whom they claim, except Robert Carter, were parties to the suit in Chancery for a partition of the lands held in common.

In the first place, I had no doubt that the covenant to stand seised, to the use of the other parties to that covenant, in fee-simple, did, under the operation of the statute of uses, vest a legal estate, in fee-simple, in all the parties thereto, as tenants in common, of the whole undivided Frying-Pan tract of land.

Secondly, it appeared to me, that if, after partition made, a real action had been brought against either of the tenants in common, they might, by the common law, have vouched Robert Carter, jun. as heir to the covenantor, to warranty. And, on the other hand, I had ho doubt, that, if a real action had been brought against John Semple, or his heirs, they also might vouch the same Robert Carter to warranty, by virtue of his conveyance to John Semple. And this upon that principle of the common law which substituted a voucher in lieu of an action, And, inasmuch, as, in a contest between parties claiming under the same feoffor with warranty, whichever prevails, the warrantor is liable to the other upon his warranty; or, if he be dead, his heir is equally liable; it seemed to me at first, that there was such a privity between the parties in this ejectment, as that the record of partition might be admitted as evidence in a controversy between them. But I am satisfied, upon further consideration, that it ought not. For there is no privity between the present defendants and Robert Carter who *sold the lands to Semple. They are neither the heirs, nor even assigns, of Semple. Their claim is founded upon the decree for the sale of the lands, upon the foreclosure of Semple’s mortgage to Philip L. Lee: if they have a conveyance, it must be from the sheriff, by whom the decree was executed, pursuant to the directions of the statute, There is therefore no foundation to presume any privity between Robert Carter, and them. The record, therefore, was properly rejected, and the judgment ought to be affirmed.

JUDGE ROANE.

I have seen no adjudged case upon the very point; but, it would seem to be a just position, that a verdict against an ancestor, in order to-bind those claiming under him, must have taken place during the existence of his title. If this criterion be not adhered to, I see nothing to prevent the ancestor and his heirs from binding those deriving title under him, at the most remote periods of time. This would produce innumerable frauds, and let in the transactions of insolvent persons. Besides the spirit of the rule, that no man is to be bound by a verdict, unless he or those under whom he claims, had the liberty to cross-examine, would perhaps, be violated: that spirit seems to require that the party to the suit in which the verdict is rendered should have an equal interest with him against whom it is to be used. These positions seem equally to apply to decrees in equity: and in the case in question, Robert Carter was not equally interested with the appellees, in relation to the possession, at least, of the land in controversy. It was, perhaps, unimportant to him whetner the appellees were dispossessed of this land, or not. In the one case, his warranty would bind him to remunerate them its value; and, in the other, he would have to yield other lands of equal value to the plaintiffs in the suit for partition. He therefore had not the same inducements with the appellees to defend the possession of this land: and consequently the decree in the suit for petition was rightly rejected.

I am of opinion that the judgment ought to be affirmed.

*JUDGE FLEMING.

The only question that seems material for this Court to decide at present, is, whether the District Court erred in not permitting the record of the suit in Chancery, brought by the appellant, and others, against Robert Carter, for a division of the trust estate, to go in evidence to the Jury, on the trial of the ejectment?

There is no general principle of law that seems better settled than that no one shall be injured or affected by the event of any suit in which he was not a party; the reasons, of which are laid down in all the books, and are too obvious to need repeating- here. 'There was no error then, in the Court’s refusing to permit the record in the suit in Chancery to go as evidence to the Jury, the •defendant not having been a party in that ■suit.

With respect to the exception on the part •of the defendant to the opinion of the Court, in permitting the paper purporting to be a •copy of an agreement or indenture between the members of the Copper-mine Company in the year 1731, to go in evidence to the Jury, it seems immaterial to consider it here, as he was the prevailing party in the suit, and received no injury by such permission.

Judgment unanimously affirmed. 
      
       Co. Lit. 101, b. 102 a.
     
      
       Co. Lit. 102 a.
     
      
       L. V. ed. 1791, and c. 90, s. 19.
     