
    *Christian’s Devlsee v. Christians and Others.
    
    Decided, March 18th, 1820.
    i. Equity Jurisdiction — Caveat—Application of Noland v. Cromweil. — The general principle laid down in the case of Noland v. Cromwell, 4 Munf. 155, does not apply to a case in which the rights of the parties can not be adjusted in the Court of Caveat, but the aid of a Court of Equity is necessary to give to each his proper share of the land, for which one has improperly obtained a Patent, a. Wills — Construction.—A testator having twobrother,s, devised to one of tkeni a tract of land, describing it as his plantation on H. creek : and to the other, ‘‘the plantation whereon he lived, and his lands therennto belonging-.” This devise was construed as giving the last mentioned brother, not only the plantation or cleared land where the testator lived, with the adjoining woodland, used for timber and fuel, but the whole tract and several other tracts adjoining thereto.
    3. chancery Practice — Partition—Decree.—In decreeing a partition in favour of a plaintiff claiming by equitable title, the Court ought not to direct that the holders of the legal title stand seised of the plaintiff's part to his use: but, that they convey the same, by deed, to him and his heirs.
    4. Same -Recovery of Land GSahnesl Iby Equitable Title — Parties.—In a suit in Chancery to recover a tract of land claimed by equitable title, and for other objects ; if It appear tha.t some of the defendants are entitled to a moiety of the land, by an equitable title adverse to that of the other defendants, the Court should permit them to unite as plaintiffs in the suit, to claim such moiety.
    Upon an appeal from a decree of the late High Court of Chancery, in a suit in which John Christian of the County of Buckingham was originally complainant, and George Christian’s children, together with William Price Register of the Land Office, John Booth, Thomas Staples, Drury Bell, and Samuel Bell were defendants.
    The plaintiff’s case, according to the allegations in his original, amended and supplemental bills, was, in substance, as follows: — ■
    In the years 1747 and 1753, James Christian the elder, (father of the plaintiff and of Charles, James and George Christians,) made entries for several parcels of land then vacant; viz., one for390acres, another for 365 acres, and a third for upwards to 2000 acres, all which entries were duly surveyed in his life-time. On the 19th o± January 1753, so much of those lands as lay on Fluvanna River, on both sides thereof, including the Buffalo Islands, were comprehended by the Surveyor of the County of Albemarle in one survey, which (the vacancies between the former entries being included,) amounted to 2350 acres. Of these 2350 acres, he obtained in his lifetime patents for two tracts only, to wit for 200 acres called Buffalo Island, and for 240 acres called Coleman’s neck; which he was said to have aliened, leaving 1910 acres unpatented.
    *On the 18th of May 1752, he made his last Will, which was admitted to probate March 8th 1759, whereby he directed the said large survey (under the description of the remainder of his land) to be equally divided among his four sons ; and, in 1758, he died. No farther step was taken concerning the said lands, until at least the year 1761, when Charles Christian the eldest son died, without wife, child or will. James Christian the second son, inherited Charles Christian’s proportion of the said inclusive survey, and made a settlement thereon. About the year 1768, 1769, or 1770, the plaintiff, who was the third son, and George Christian the fourth, agreed to tjake possession of a part of the said land, and work the same in partnership, and accordingly did take possession of about 800 acres, or probably more, with the approbation of their brother James Christian, on one side of a branch of water which divided their plantation from his, and lived together thereon, in partnership as aforesaid, for several years ; but, before the death of James Christian the younger, which happened in 1781, they divided their proportion aforesaid between themselves, according to slated metes and bounds; leaving however, the quantity of each uncertain, but separated by an agreed fence.
    James Christian the younger, on the 20th of October 1772, made his last Will, by which he gave to the plaintiff a part of the land reserved to himself, which part he described as his plantation on Hooker’s creek, joining Henry Bell’s line and William Duval’s line, containing 300 acres; and to George Christian another part, by the description of the plantation whereon he lived, (which contained about the same quantity,) and his lands thereunto belonging. The said George Christian died intestate, about the year 1784 or 1785, leaving a widow and four children.- - The Survey aforesaid of 2350 acres, was returned to the Register’s Office by James Christian the younger, on the 29th of May 1780, for the purpose of procuring a Grant; but, in as much as he paid the ancient composition money for 1910 acres only, to which the said Survey was reduced as aforesaid, the Register retained the Survey, in *order that a proper certificate might be obtained of the said reduction. Things rested thus, until about the year 1794, when a Treasury Warrant was located on a computed quantity of 1036 acres, (part of the said survey,) in behalf of George Christian’s children, comprehending that part of the survey which had been assigned to the complainant by the said George himself ; and a patent was obtained by them by virtue of the said location; the plaintiff having entered in the Land Office a Caveat against it, but, unfortunately, failed to file a Copy thereof in the proper Court in due time : and, tho’ the plaintiff, by virtue of one of the surveys, made as aforesaid by James Christian the elder in 1747, obtained a patent, as heir at law to his said father and brothers Charles and James, for 365 acres, comprehended within the lines of the said 1036 acres, and, offering to fulfil every requisite of the law, called upon the Register in vain to issue a Patent for the 1910 acres, (part of the Survey of 2350 acres, which survey had never lost it’s validity;) yet the children of George Christian brought an Hjectment, and obtained a Judgment against him, for so much of the said 1036 acres as was held by him. The plaintiff therefore prayed an Injunction to that Judgment ; that his rights in the said large Survey, as well under his father’s Will as that of his brother James, be protected ; that the dividing line between him and the said James be established ; that the Register be directed to issue to him Grants for those rights, as far as they were incomplete in law ; that the Grant to George Christian’s children be set aside, so far as it interfered with those rights ; and for general relief.
    The Bills farther stated, that a part of the plaintiff’s interest in the large Survey aforesaid was covered by Warrants located thereon by Henry Bell and Drury Bell; that, on the 21st of November 1795, Drury Bell obtained a Grant, for 138 acres ; and Henry Bell (of whom Samuel Bell and Drury Bell were afterwards the devisees,) a Grant for 414 acres ; that the plaintiff was not in possession of the said 414 acres, but, with James Christian, had. been in possession of the said 138 acres at least *twenty-five years : that John Booth and Thomas Staples obtained a Grant, bearing date the 25th of March 1796, for 1500 acres, including400 acres of the said Survey of 2350 acres: that the plaintiff’s Caveats, against the issuing of those grants, were dismissed, because they were not entered in the County- Court in time : that John Booth instituted an Ejectment in Buckingham County Court, for the said 400 acres, altho’ the plaintiff had been in possession thereof at least twenty-five years. He therefore prayed that John Booth, Thomas Staples, Drury Bell and Samuel Bell be decreed to convey to him all their respective rights under the said Grants.
    From the Answers of the several defendants, Exhibits and Depositions, and a connected plat of the lands in controversy, it appeared that the plaintiff and George Christian, on the 13th of December 1771, received a transfer from James Christian the younger, of a Survey of 400 acres of land, lying on the South side of the Fluvanna River, dated the 26th of February 1747, being the same 400 acres which Booth and Staples included in their patent for 1500 acres, dated March 25th 1796 ; that Henry Bell, father of the defendants Drury and Samuel, purchased of James Christian the elder 400 acres, surveyed for him Dec. 4th 1747 ; paid the purchase money, took a title bond, and had peaceable possession of the land in the life-time of the vendor; that James Christian the younger promised to make him a conveyance of the said 400 acres, but failed to do so ; which 400 acres were afterwards included in his Grant for 414 acres aforesaid, dated Nov. 21st 1795 : that the 138 acres, for which Drury Bell’s grant was obtained, were comprehended in the said Survey of 2350 acres; that the Survey of 390 acres, dated Nov. 16th, 1747, and another of 123 acres made for James Christian, the elder, March 24th, 1747, were included in the lands devised by James the younger to George Christian and the complainant ; that a fence was agreed upon as separating the lands of the said George Christian and the complainant, but no line was marked between them: the course of the dividing fence was shewn by a red dotted line, in a connected plat made out and signed by the parties : *that, on the 4th' of June 1798, a grant was issued to the complainant as heir at law to James Christian deceased, for 400 acres lying in Albemarle County on both sides of Stone Wall Creek, on a Survey made the 17th of Nov. 1747, which was not included in the 2350 acres: that the patent for 1036 acres, obtained by the children of George Christian, comprehended the whole of the aforesaid surveys of 123 and 390 acres, on one of which the house of the complainant stood: and that, on the 30th of December 1801, Joyce Christian, devisee of the complainant who then had departed this life, obtained a patent for the said 390 acres.
    The suit, having abated by the complainant’s death, was revived, upon a Bill filed by Joyce. Christian his widow and devisee, and John M. Walker administrator with his Will annexed.
    Chancellor Wythe, in May 1805, was of opinion, “that the plaintiff was entitled in equity to those parts of the 2350 acres of land, represented in the map or plat thereof, to which the parties have subscribed their names, by the outside black lines ; to which parts, in law, the plaintiff would have been entitled, if a grant of the said 2350 acres of land had been regularly signed and sealed by the Governor, on the day and in the year when the certificate that the said land had been surveyed was returned to the Register’s Office; that, of the said 2350 acres, the plaintiff’s brother George was entitled, under the testament and last Will of their father James, to one fourth part, (after excluding what he had sold,) and, under the testament and last Will of James the son, to the plantation whereon his testator lived, and so much more as he meaned to comprehend by the words, “and all my lands thereunto belonging,” which are understood to include the land from which the testator had ordinarily supplied the land cultivated by him,, with fences, felled timber to build and repair houses, and cut fuel for his household, and is not supposed to exceed 300 acres with the plantation; and that, leaving out of the said 2350 acres the parts thereof sold by James the father, and the parts *devised to George by James the son, as before mentioned, the plaintiff is entitled to the remainder.” He therefore perpetuated the Injunction, and decreed,, “that the said 2350 acres, after those sold by James the elder, and those devised by James the younger to his brothers John and George shall have been taken off, be divided into four equal parts, to be laid out in convenient forms ; that one of them, in which are not any improvements made by the plaintiff, be allotted and delivered to the defendants who are children of the said George Christian ; that the plantation ’of the said James, the son, including therewith 300 acres of the circumjacent and contiguous land, also to be laid out in a convenient form, be allotted to the same defendants, children of George Christian ; and that all the defendants remain and stand seised to the use of the plaintiff, of so much of three parts of the land, herein before decreed to be divided into four, as they hold respectively within the black lines before mentioned ; that make the partitions hereby decreed, and report their proceedings, in execution of this decree, to the Court; and that the plaintiffs pay one half the costs, and the defendants the other half.”
    From this decree all the parties appealed, except the defendants Booth and Staples.
    
      
       For sequel of principal case, see Mundy v. Vawter, 3 Gratt. 518.
    
    
      
       Eqnity Practice — Land Patent — Fraud. — In Mc-Clnng v. Hughes, 5 Rand. 489, it is said: “The jurisdiction of equity, after the issuing of the patent, in a case of actual fraud is affirmed in the. cases of Wilcox v. Calloway, (1 Wash. 38) : Reid v. Burn-sides, (2 Wash. 43) (in which cases the patents were issued pending a caveat by tbe other party) ; in Johnson v. Buffington (2 Wash. 116) and White v. Jones (1 Wash. 116) (in which cases the jurisdiction was affirmed, although no caveat was filed, and no reason assigned for the failure) ; and such were the cases of Preston v. M’Kinney (not reported) and Christian v. Christian." See also, principal case cited on this subject in M’Clung v. Hughes, 5 Rand. 486, 505. Jackson v. McGavock, 5 Rand. 540; Beck-with v. Thompson, 18 W. Va. 124. See further, mon-graphic note on “Caveat” appended to Warwick v. Norvell, 1 Rob. 308; monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   The following was the decree of this Court.

The Court is of opinion, that the decree of the Court of Chancery is erroneous, which therefore is reversed, with costs. And the Court, being of opinion that this case is not embraced by the general principle laid down in the case of Noland v. Cromwell, because the rights of the parties could not have been adjusted by the Court of Caveat, is therefore farther of opinion that the appellees are to be considered as holding under their patent in trust for the appellants according to the rights of each under the Will of James Christian the elder; and, for the same reason, the appellees Staples and Booth ought to be considered ’as trustees according to the rights of the parties. It is therefore adjudged, ordered and decreed that the appel-lees James, Elizabeth, Charles and Sally Christians, *be perpetually enjoined from proceeding to enforce the judgment at law in the Bill mentioned, against the appellant Joyce Christian, for so much of the lands comprehended in the surveys of 123 and 390 acres, as lies above the red dotted line laid down in the connected plat filed in this cause, and whereon John Christian’s house stands ; and that they do convey the same to her, in fee, with special warranty:— but the operation of this Decree is to be suspended until she shall convey to them, in fee, and with special warranty, an. undivided fourth part of the 400 acres of land on Stonewall creek, granted to her testator, and of any other tract or tracts of land granted to him, or to her, under and by virtue of any entry or entries, survey or surveys, made by James Christian the elder, prior to the date of his Will, and which are not laid down in the said connected plat; or otherwise compensate them therefor; and that the said appellees be quieted in the possession and enjoyment of all the residue of the lands granted to them by the patent, in the Bill and proceedings mentioned, and also in the several tracts of land adjoining thereto, for which patents issued to James Christian the younger, (and which the Court is of opinion were by him devised to their father George Christian,) quit of the claim and demand of the appellant Joyce Christian and all persons claiming under her; and that each party do pay their own costs in the Court of Chancery.

And it is further adjudged and decreed, that the Bill, as to the appellees Drury and Samuel Bell, be dsimissed, as to whom the general principle decided in the case of ÜSToland v. Cromwell applies ; and that the appellants pay to them their costs in the said Court.

And it is farther adjudged, ordered and decreed, that, as to the appellees Staples and Booth, the cause be remanded to the Chancery Court, with directions to that Court to permit the appellant Joyce Christian, if so advised, to amend the Bill as to those ap-pellees, and to permit the appellees James, Elizabeth, Charles and Sally Christians, or such of them as may be advised to do so, to unite as plaintiffs in this suit, as claimants of ⅛ moiety of the 400 acre survey, made by James Christian the elder on the 26th day of February 1747, and transferred to John and George Christian on the 13th day of December 1771, by memorandum in the Surveyor’s books, and which survey is embraced in the patent granted to those ap-pellees ; in order to a final decree between those parties.  