
    *Harris v. Crenshaw.
    November, 1825.
    Trespass Quare Clausum Fregit — Conversion into De Bonis Asportatis. — An action of trespass quare clausum fregit. is not converted into an action de bonis asportatis, by an allegation in the declaration, that trees cut were carried away; and therefore, the rule actio personalis moritur cum persona applies to such an action.
    Same — Death of Defendant — Effect.—In such case, if the defendant dies before verdict, the writ will abate: but if after verdict and judgment, the plaintiff has a right to a scire facias against the the personal representative of the defendant, though not against his heir or devisee; and the personal representative has a right to reverse the judgment, on appeal, if he can.
    Real Estate — Coterminous Owners — Parol Agreement as to Boundary — Effect.—If two coterminous owners of land agree, by parol, to establish a line between them, which they both knew, and which in truth, was different from the true line, the title does not pass thereby,
    Same — Same--Same—Same—Acquiescence.—But if the line was run and marked as a dividing line between them, and it was agreed upon by parol, as the line; if there were two processionings of a part thereof, and the parties and those claiming under them acquiesced in the said line for 20 years, it is equivalent to a surrender of the possession of any land, which may be cut off by the said line, although it might have belonged, before the line was run, &c. to the other party.
    Trespass quare clausum fregit, brought by Harris against Izard Bacon, in the Superior Court of Henrico. Bacon died pending the suit; and Crenshaw, his dev-isee, and his executors, were ‘made defendants by consent. He pleaded the general issue. Verdict and judgment for defendant. Harris appealed.
    The controversy turned on a question of boundary, and the title of 60 acres of Chickahominy Swamp was in dispute, of which both parties claimed the right of possession. At the trial, the plaintiff filed a bill of exceptions; from which it appears, that Nathaniel Bacon the elder, being proprietor of all the lands now held by both parties wdio are coterminous holders, by his will dated in 1743, divided those lands between his sons Lyddal and Langston on the one part, and Nathaniel on the other, by metes and bounds distinctly designated in his will; and it is not disputed, that according to the will, that part of the dividing line between those devisees which is now in dispute, was the straight line which the appellee now claims to be the *true line. In the partition between Lyddal and Langston, the land adjoining their brother Nathaniel’s land, was assigned to Langston, who sold and conveyed the same to Nathaniel Wilkinson, by deed dated the 6th October, 1755. Nathaniel Bacon the younger, and Wilkinson, thus became coterminous holders; and Harris (who claims under Richard Gregory and wife, devisees of Wilkinson,) introduced parol evidence io prove, that in 1759, Bacon and Wilkinson intending to mark that part of the dividing line between them, which is the line now in dispute, and to run a straight line there according to the will of Nathaniel Bacon the elder, from the point at the termination of the highland fixed by the will, through Chickahominy Swamp, a straight course to the bottom of Rowcouncy Neck, the other point fixed by the will, procured guides for that purpose, to conduct them through the forest and swamp; but being deserted by the guides, they diverged from the intended straight line, and ran a crooked line far wide of the true line, which came not near the point called for by the will, and cut off 60 acres of Bacon’s land. And he introduced parol evidence to prove further, that both Bacon and Wilkinson knew that the line they liad run was not the true line, yet they agreed to mark that line, and establish it as the dividing line between them, and it was marked in the presence and by consent of both; and a small part of that line was af-terwards twice processioned. Crenshaw, (who claims under the will of Izard Bacon, the devisee of Nathaniel Bacon the younger,) introduced parol evidence on his part, to prove, that Izard Bacon, immediately after the death of his father, Nathaniel, which was in 1774, claimed the land now in dispute, denying that the crooked line marked as above said was the true line; that for 20 years before the present suit, he felled trees and got timber from the land now in dispute; that in one instance, he gaye notice to Wilkinson that he was doing so; and farther, that Wilkinson, more than 20 years ago, directed his overseer not to make a plant *patch on the land in question, saying it was disputed land. Whereupon,
    1st. The Court instructed the jury, (at the instance of the defendant’s counsel.) that even if they should be convinced of the facts which the plaintiff had endeav-oured to prove, (as above stated,) yet the parol agreement between Nathaniel Bacon and Wilkinson, to run a line which both knew to be different from the true line, and to establish a false line, and the actually running of the false line, did not pass the title from Bacon to Wilkinson, to the lands included between the true line, and the false line actually so marked; (which are the lands in dispute.)
    2dly. The plaintiff’s counsel moved the Court to instruct the jury, that the facts he had endeavoured to prove, (as above stated) constituted, taken all logether, such a possession in Nathaniel Wilkinson, and those claiming under him, as would enable him or them to maintain this action against Izard Bacon, and those claiming under him. But the Court refused to give such instruction; and instructed the jury, that the mere fact of running and marking the said false line, and two processionings of part thereof, and the subsequent acquiescence of Nathaniel Bacon, ill the said line and processionings, did not constitute such an adverse possession in Wilkinson, or those claiming under him, as would enable them to maintain this action against Izard Bacon, or the defendant, though 20 years had elapsed from running such line, unless the fact of running and marking such line, had been accompanied or followed by some act of actual possession on Wilkinson’s part, (as felling of trees,) and if no such act of actual possession was proved, the possession of the land must be considered by the jury, as going alorig with the title.
    To these opinions of the Court, Harris excepted.
    Wickham, for the appellant,
    contended, that the second instruction of the Court was erroneous. The circumstances prove an actual possession in Wilkinson
    and those claiming *under him; or at least the jury might infer possession from those circumstances. The question of possession is analogous to that of livery of seisin; which, Lord Coke tells us, Co. Litt. 48, a, b, may exist in law as well as in deed, as by the performance of some act which will be considered as equivalent to actual livery. The same author, lb. 169, a, tells us that partition between-parceners may be made by parol as well as by deed. The two processionings, and long acquiescence of the parties, amount to a ratification of the partition which was actually made. The practice of running a dividing line, in which the parties make mutual concessions, for the sake • of convenience, is universal in this country. If it.be objected that some act of possession within the disputed boundary, is necessary, an act is required which is impossible in swamp land covered with wood.
    Leigh, for the appellee,
    stated a preliminary objection, viz: that an appeal could not be prosecuted by or against an executor or devisee in such a case as this. For this position, he referred to 1 Chitt. PI. '56, 59; 1 Saund. 215, n, 1. Our act of Assembly, 1 Rev. Code, 390, § 64, only gives an action for goods taken- and carried away in the life-time of the testator; not for personal torts or trespass to real property, as cutting trees, &c. Williams v. Brandon, 1 Bos. & Pull. 330; Hook v. Hancock, 5 Munf. 546; 1 Chitt. PI. 58; Emmerson v. Emmerson, Sir W. Jones, 177., 174.
    The attempt to run the line could not be a conveyance of the land. By our laws, it never was possible to convey real estate by livery of seisin alone, without deed. See Revisal of 1769, 142, ch. 1, sec. 1, 2. Where no actual possession is proved, the possession of land shall be presumed to go with the title. 16 Vin. Abr. “Possession,” a, pi. 3, 4, 5, p.'454; Co. Litt. “Warranty,” 368, a. As to the two processionings, they are not conclusive evidence of boundary. 1 Rev. Code, 339, § 75.
    *Wickham, in reply,
    said, that the first objection would have been more properly made, on a motion to quash the scire facias. This action is brought for carrying away trees; and this action, by our act of Assembly, survives the wrongdoer, and may be maintained against his representatives.
    November 17.
    
      
      Real Estate — Action for Nuisance — Death of Party —Effect.—In an action on the case for a nuisance to the freehold, the cause of action dies with the person: Upper Appomattox Co. v. Hardings, 11 Gratt. 3, citing principal case.
      Sale of Land —Specific Performance — Possession.— Possession alone will, under some circumstances, entitle the purchaser of land to a decree for specific performance. Gallagher v. Gallagher, 31 W. Va. 14, 5 S. E. Rep. 300, citing principal case as authority.
      See further, monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   JUDGE COALTER,

delivered his opinion:

This is an action quare clausum fregit, in which there was a verdict and judgment against the plaintiff, who appealed to this Court; during the pendency of which appeal, the appellee has departed this life. A scire facias having issued to bring both his real and personal representatives before the Court, the first question presenting itself is, whether the appeal can be revived at all; and if it can, whether the real and personal representatives are both to be made parties thereto, or only the latter?

Whilst it must be admitted on all hands, that this is a personal action, and of that nature which dies with the person, so that if the judgment be reversed, no farther proceeding can be had in the Court below, but the cause must stand abated, as in the case of Hook v. Hancock, 5 Munf. 546, in this Court: yet the appellant may be interested in having this judgment reversed, if it be erroneous, as it may possibly stand in his way in some other controversy, in relation to the land in dispute. Although it would therefore seem, that the real representative of the appellee may be most interested in procuring an affirmance of the judgment; yet as the action is, in its nature personal, as aforesaid; as the appellant will be entitled, in case of reversal, to recover his costs in this Court, to be levied of the goods of the appellee; it would seem that the personal representative must be a party; and it is not perceived how both can be joined, the one in his representative, and the other in his individual character; or how a joint judgment could be entered for or against them; or indeed, how any judgment *could be entered for or against the real representatives in this case.

The scire facias, therefore, as to the real representative, was improvidently awarded, and must be quashed.

On the merits," I am of opinion, that the first instruction mentioned in the bill of exceptions, was right.

As to the second instruction, I have found more difficulty. In fact, I find some difficulty in ascertaining its import; or rather, the data on which I am to consider it as predicated. In. the first part of the bill of exceptions, it is stated, that the evidence was introduced by the plaintiffs, tending to shew that Nathaniel Wilkinson and Nathaniel Bacon, being desirous to run the true line between them, did proceed, in 1759, to do so: that they began at A. one known corner, and intended to run a straight line to the bottom of the neck, the point C. in the plat, another known point between them: that their guides left them; but nevertheless they proceeded on, and ran the crooked line to B. Evidence was also introduced to prove, (what the defendants denied) that the said Wilkinson and Bacon, after they readied the point B. well knowing that the course, so pursued by them, was not the true course, nevertheless agreed to mark the trees on that course, and to establish it as the line between them; and accordingly that the line was so marked, in the presence, and by the consent of both of them. Evidence was also introduced, for the purpose of proving that a part of the said line, from A. to C. was afterwards twice processioned in the life-time of Nathaniel Bacon, (he knowing it, and making no objection;) and that the processioners were probably prevented irom going farther, by the mud and water in the swamp. Wilkinson died, as is admitted, in 1809; and the case goes on to shew, how that part of the coterminous tract, joining this disputed land, came to the plaintiff; concerning which, there is no dispute: that N. Bacon died in 1774, and devised his land to Izard Bacon his son, who died in 1816, and devised to the defendant.

*The defendant introduced evidence for the purpose of shewing (what the plaintiff denied,) that Izard Bacon, immediately after the death of his father, claimed the land now in dispute, as his own, denying that the line so as aforesaid marked by Nathaniel Wilkinson and N. Bacon, was the true dividing line between them: that Izard Bacon, for more than 20 years before this suit, repeatedly felled trees and procured timber from the said land; and on one occasion, gave Wilkinson notice, that he was doing so; and that Wilkinson, about 20 years ago, directed his own overseer not to make a tobacco plant patch on the said land, saying it was disputed land.

The counsel for the defendant, moved the Court to instruct the jury, that even if they were of opinion, that the facts which the plaintiff endeavoured to prove, actually occurred, to wit; that a parol agreement was made between N. Wilkinson and N. Bacon, to establish a line between them, which they both knew to be, and which was, in truth, different from the true line, and the actual running and marking of that line, by virtue of the said agreement; yet such agreement and running the line, did not pass the title from Bacon to Wilkinson; which instruction was given.

The plaintiff’s counsel then moved the Court to instruct them, that running and marking the said dividing line between the said parties, and the two processionings of a part of the line as aforesaid, together with the acquiescence of N. Bacon in the said line during his life (if the jury should be satisfied of such facts,) constituted such a possession in Wilkinson, and those under him, as after a lapse of 20 years, (if the jury should think such time did elapse,) would enable him or those tinder him, to maintain an action of trespass against Izard Bacon, or those claiming under him; which instruction was refused. But the Court instructed the jury, that the mere fact of running and marking the line, and the two processionings of part of the said line, and the subsequent acquiescence of the *said N. Bacon, in the said line and processionings, did not constitute such an adverse possession, _ as would enable N. Wilkinson or those claiming under him, to maintain trespass against Izard Bacon, or the defendant, even if 20 years should have elapsed from the running of such line; unless the said fact, of running and marking the said line, was accompanied or followed by some act of actual possession on the part of the said Wilkinson, such as felling trees; and if such act of actual possession was not proved, the possession of the land must be considered as going with the title.

When I read this instruction, I was struck with the manner in which the Judge limited the case to the mere facts of running and marking the line, and the two processionings of part of the line, with the subsequent acquiescence of N. Bacon, in the said line and processionings, as not constituting such a possession as would maintain the action; unless .such running and marking was accompanied or followed by some act of actual possession, &c. I thought the Judge had improperly thrown out of the plaintiff’s case, the parol agreement to establish that as the line between them, which the first part of the bill of exceptions states that he attempted to prove. 1 think a case depending on the mere fact of two neighbours running a line and marking it as a line between them, whether they did or did not know that it was the true line, and making no objection when a part of that line, (which, by the by, in that part thereof, was very near the true line,) was processioned, and acquiescing therein, (so far as a party can be said to acquiesce, where the party now claiming possession under these acts, never exercised any of the ordinary acts of ownership of the disputed land,) is very different from the case of parties running a dividing line; and though they found it not to be the true line, yet agreeing to establish it as a line between them. The latter transaction may very possibly be considered, and T incline to think, ought to be considered, equivalent to an actual surrender of the possession, *by the true owner to the other, to hold as his property; and although it would not convey the title, yet it would be such a possession, as, after the lapse of 20 years, would enable him to maintain trespass even against him, who had the right of property. But I should doubt very much, whether the mere running and marking a line, &c. in the manner mentioned by the Judge, unless accompanied or followed up by some more unequivocal act of possession, ought to be considered, between co-terminous tenants, as such an adverse possession, as would not, according to the decisions, accompany the title. I think it would be a dangerous doctrine, and might trench injuriously on that safe rule of law, which protects such tenants, and which it can never be sound policy to abridge or lessen. But did the Judge place the case of the plaintiff on too narrow a ground? It seems to me that he could not, and ought not, to have placed it on any other, unless the plaintiff had new modelled his motion. It may be that the plaintiff doubted his ability to prove the parol agreement, and chose to rest his case on the running, marking, &c.; and agreeably to his motion, had the Judge given the instruction required, he need not have proved. the parol agreement, in order to support his case.

Under this view of the motion and instruction that was given, and as at present advised, I think the instruction was correct.

If I am wrong in this, and if the plaintiff’s motion and the instruction of the Court were predicted on every thing, which the preceding part of the bill of exceptions states that the plaintiff attempted to prove; then, as before stated, I incline to think that the instruction was wrong.

But had the Judge given the instruction asked for, he ought to have gone further.

The running and marking the line, if it ever took_ place, is said to have been in 1759. _ It is agreed, that Nathaniel Bacon died in 1774,-15 years- thereafter. If the proofs, then, which the defendant offered, should have satisfied the *jury that Izard Bacon, the son and devisee of Nathaniel, immediately after his death, laid claim to the land in controversy, and followed that claim up by acts of ownership, and especially if he gave Wilkinson notice thereof, even if those acts and that notice were after 20 years from the running of the line; and especially, too, if Wilkinson directed his overseer riot to make use of the land for á plant patch or otherwise, because it was disputed land; then they ought to have been instructed that this would be such an entry and possession by Izard Bacon, as that after 5 years, no action of trespass would lie against him, unless Wilkinson, or those claiming under him, had re-entered within 20 years; and if the jury should be satisfied, that such entry and possession by Izard Bacon, was immediately after the death of his father, and within 20 years from the running of the line, they, ought to have been instructed that such entry was lawful, and that no action would lie therefor.

According to one view of the case, I should affirm, and according to the other, reverse, the judgment; and must, therefore, leave it to my brethren, whether it should be affirmed or reversed.

The PRESIDENT,

delivered the following opinion, in which the other Judges concurred:

This is certainly nothing more than an' ordinary action of trespass quare clausum fregit. The allegation that the trees cut were carried away, is always inserted in the declaration, when it is intended to be proved. It did not convert the action into-an action of trespass de bonis asportatis, and take it out of the rule actio personalis moritur cum persona. If the defendant had died before verdict, the writ would have abated, and the plaintiff would have been deprived of his damages, if he had sustained any. But there being a verdict and judgment against him, by *which he may be hereafter affected in some other controversy respecting the premises, he has a right to reverse that judgment if he can, and was entitled to a scire facias against the personal representative of the appellee, though not against his heir. The scire facias as.to the latter, was, therefore, improvidently awarded, and is to be quashed.

Upon the merits, there is no error in the first instruction to the jury, in the bill of exceptions. If the jury did believe that a parol agreement was made, between Nathaniel Wilkinson and Nathaniel Bacon, to establish a line between them, which they both knew, and which in truth, was different from the true line; and also, did actually believe in the running and marking of that line; the title did not pass thereby, as they were instructed by the Judge. Yet if they believed that the line was run and marked as a dividing line between the parties, and that it was agreed upon by parol as the line between them: that there were two processionings of a part thereof; and that Nathaniel Bacon, and those claiming under him, acquiesced in the said line, during his life, for the term of twenty years, as is relied on by the appellant, in the second exception to the opinion of the Judge, it was equivalent to an express surrender of the possession of the land in controversy, to Wilkinson, and entitled him, and those holding under him, to an action of trespass; unless the jury had believed also, that Izard Bacon, under whom the defendant claims, re-entered on the land in controversy, and exercised other acts of ownership thereon, more than 20 years before the institution of this suit, as is insisted on by the defendant.

The second instruction of the Judge, was, therefore, erroneous; and the judgment is to be reversed, and the verdict set aside; and as, by the death of the appellee, the appeal abated here, and there can be no further prosecution of the suit in the Court below, it coming within the rule before stated, it is to be abated here, and the proceedings certified to the Court below, as in the .case of Hook v. Hancock, 5 Munf. 546. 
      
       Judge Cabell, absent.
     