
    Cases of Opinions of Chief Justice Boyle and Judge Owsley, Judge Mills absent, which were suspended by petitions for rehearing, till now affirmed, by Chief Justice Bibb.
    Barbour vs. Whitlock.
    Appeal from the Jefferson Circuit; John P. Oldham, Judge.
    
      Parties. Error. Notice. Depositions.
    1824, October 16.
    Statement.
    Assignment of the error.
   Chief Justice Boyle

delivered the Opinion of the Court.

This is an appeal prosecuted by the defendant from a decree in Chancery, enjoining proceedings upon a judgment in ejectment, for a lot in the town of Louiville, and compelling him to release his title to the complainant.

The objections taken to the decree by the assignment of error, are 1st. That the proper parties were not before the court. 2nd. That the depositions taken by the complainant were improperly admitted by the circuit court, to be read in evidence. 3rd. That on the merits, the complainant was not entitled to relief.

One who undertakes to recover land for a part of it, is not a necessary party to a bill by the adversary, enjoin a judgment in ejectment, thus obtained against him.

If defendant deny an allegation of an interest of a third person in the property, and it is not proved, he cannot afterwards, assign for error, that that person was not made a party.

Certainty to a common intent only, required in notices to take depositions.

The sole ground for the first of these objections is, that a person who the complainant alleges had agreed with the defendant to recover the lot for a part of it, was not made a party to the suit. This ground is, we think, clearly untenable. It is undoubtedly true as a general rule, that every person interested in the subject matter of a suit ought to be made a party to it, that his title may be decided, and future litigation be thereby prevented; but the reason of the rule is inapplicable to a case of this kind, and the rule itself ought not, therefore, to be applied to it.

A contingent interest depending upon the event of the suit, cannot be such an one as to make the person having it a necessary party, for if the suit be determined against the claim in which he has the interest, his title is at an end, and in any event, his title does not exist in a shape necessary to be decided on until the suit is determined.

But a conclusive answer to the necessity of making the person in question a party is, that although he is alleged in the bill to have such interest, the fact is not admitted by the defendant, and there is, in the answer, a general traverse of every fact not admitted; and as there is no proof of the interest, it cannot be alleged now to exist. The objection, therefore, for want of the proper parties, cannot be sustained.

The objection to reading the depositions is founded upon the insufficiency of the notice for want of certainty, as to the place of taking them. The depositions were taken in the absence of the defendant, at the left wing of the court house of Jefferson county, in the town of Louisville, and the notice was given that they would be taken “at the left wing of the court house,” without designating what court house or where it was situated. The notice was not as explicit as it might have been, with reference to the place of taking the depositions, but absolute certainty to every intent, is not necessary. A notice which is certain to a common intent is sufficient, and of that degree of certainty, the notice in this case must, at least, be deemed to possess.

In a suit in the Circuit Court for a lot, at the County town and where the parties all reside in the County, a notice to take depositions at “the court house,” is sufficiently certain.

The subject matter of controversy was in Louisville. The suit was depending in the Jefferson circuit court, and the parties resided in that county.—Under these circumstances, we can hardly suppose that the defendant could have had a doubt, when he received the notice to take depositions at the court house, that they were intended to be taken at the court house of Jefferson county. The inhabitants of a town where a court house is situated, never think of using any other expression than “the court house,” when they have allusion to their own court, house in exclusion of any other, and the same expression with the same allusion is generally used by the inhabitants of the country. But where it is used by them in relation to a suit they have there depending. and the subject of litigation is in the vicinity of the court house, the allusion to the court house of their county, in exclusion of all others becomes still more certain. We cannot, therefore, doubt that the notice was good, and that the depositions were properly admitted to be read.

The merits of the case turns exclusively upon matters of fact, and we are decidedly of opinion, the evidence is sufficient to justify the decree of the circuit court.

The decree must, therefore, be affirmed with cost.

The appellant moved the court for a rehearing of the merits of the cause, and shewed his grounds in the following

Petition for a rehearing, by

W. T. Barry.

The counsel for the appellant does not intend to disturb the collateral points not affecting the merits; but cannot persuade himself to abandon the cause of his client, without making another effort on the merits of the controversy. These the court say, resolve themselves purely into matters of fact, and they were correctly decided by the court below.—With deference to the opinion of the court, the undersigned conceives that principles of law, important in their nature, are deeply involved in the main question, which principles have been passed over in silence by the court. These principles are the following:

1st. The doctrine of presumptions, or lapse of time, in favor of both complainant and defendant.

2nd. The effect of a verdict and judgment at law between the same parties to the controversy.

3rd. The doctrines of specific performance.

It will be recollected by the court, that the counsel for the appellants, before the hearing of the cause, stated that the record of ejectment for the same estate between the same parties, had been made, part of the answer of the appellant in this cause, but was not copied into it, as it ougnt to have been, and that the same common-law record was in court, and a certiorari to bring up a new copy, was applied for, unless the court should conceive that the copy already in court, could be used on this trial, without a certiorari. The answer given by the court was that the copy here could be used, and as such it was intended that the court should notice it, as it was before them. The effect of this record at law, must in the opinion of the undersigned, be important in this controversy. It is presumed that this court and the court below, must have believed one of two things—first, that the appellee’s ancestor had a legal title formerly, which had been lost by time and accident, and therefore, ought to be relieved by a decree for a new conveyance.

Or secondly, that he never had a conveyance, but had proved such a contract for a conveyance, as entitled him to a specific performance in a court of enquiry. On which of these grounds this court has based its decree, does not appear. But it can be collected from the decree of the court below, which is affirmed, that the first of those grounds was taken, and that the appellant was decreed to release his estate, because that a funner conveyance had been made by the appellant’s ancestor’s agent, which was lost.

If this be the ground assumed, it is respectfully, but confidently urged, that if cannot be maintained. It will be assumed as an incontrovertible position, that length of time was never held as a bar in equity, but only operated by way of evidence, and that presumptions, that a title had existed, or that conveyances were made, were never indulged in equity and had their origin at law, and the regular practice anterior to our revolution, in courts of equity was, if such presumption was insisted on, to send the case to a court of law. If a jury presumed a conveyance or grant there, it was allowed in chancery.—If, on the contrary, a jury disallowed the presumption, it was held as conclusive in equity, and the chancellor shaped his decree without regard to the lapse of time. The first case in which the chancellor seems to have departed from the practice of sending the matter to law to try the presumption, is a proscribed case of Hillory vs. Waller, 12 Vez. jun. 239. There the chancellor undertook to presume himself, without the aid of a court of law, and decreed the specific performance of a contract made touching an estate, the title of which was objected to as defective, because the legal title was outstanding. But as there were other writings between the parties, shewing that a conveyance was intended, the chancellor presumed it had been made after the lapse of one hundred and forty years. Even this doctrine, after such an extraordinary length of time, has been questioned by Sugden, in his treaties on Vendors, page 251, last American edition. It has, however, received the sanction of the supreme court of the United States, in Prevost vs. Gratz. 6 Wheat. 431, and is quoted by chancellor Kent, 4 John. Chy. Rep. 1.

This modern doctrine, however, that the chancellor may not send to law, by no means impugns the principle that a finding at law is conclusive against the presumption. Sug. on Ven. 210. This court, in the case of McCampbell vs. McCampbell, has also held, that finding between the parties in an ejectment is conclusive where the legal estate lies, in a suit in Chancery, for the same estate. These principles and these authorities unquestionably prove, that the finding at law in this case is conclusive, that the legal title is with the appellant; that neither honor his ancestor ever parted with it. All presumption of such legal estate is destroyed by irrefragible evidence. It will be seen by inspecting the record at law in this case, that the presumption was relied on; that all the evidence introduced into the chancery suit, was used at law, and the jury were instructed that they were at liberty to presume a title; yet the jury found against the supposed title, and this ought to set the question forever at rest. Notwithstanding this, the chancellor, over the head of this verdict and judgment at law, has presumed a title and decreed a release, and this court has affirmed the decision.

But if in this, the undersigned should be mistaken, it is seriously urged that, on no principle, could the presumption be indulged, under the circumstances in this case. What are these circumstances? In the year 1789, possession was taken of this lot. Barbour, the ancestor, was then in the older settlements of Virgnia separated from the estate by a wilderness infested by savages, then in a constant state of hostility, in the year 1792 he was in Louisville a few days. At that time the history of the country proves, that the settlers nearly had all things common, and the boundary line which now rigidly separates meum et tuum, was dimly drawn and but little attended to. There was nothing strange if he let the intruder remain on the property of but little value. He returned to Virginia, and died at or about the close of Indian hostilities, in 1794, leaving an infant son, the appellant, ignorant of his rights and incapable of attending to them. He remained an infant till the fall 1807, and in less than four years afterward, he commenced his ejectment, which has terminated in a judgment, which is perpetually enjoined. The principle of presumption, however strong, cannot go farther than the statute of limitations would go in baring the right. Here no statute had run.—For it ceased, according to repeated decisions, to have any effect upon the right, on the descent cast upon the infant. It must be absurd to say. that the statute had not barred the appellant’s right; that his title at law was clear, and yet that the same length of time should authorize a presumption, which would take his right away by a decree in equity. The strongest cases of presumption in equity do not go thus far. Lapse of time is frequently relied on to bar rights, and it is very seldom admitted to be sufficient to take away clean legal rights. Cases of this kind are rare. Such, as have come under the notice of the undersigned, he will refer to; and it will be seen by inspection, that they fall far short of supporting the decree, in this case. In Ham vs Schuyler, 4 John. Chy. Rep 1 a lease in fee was presumed and decreed to be renewed, of a tract of land situated among other lands thus confessedly leased, after a lapse of 80 years, and payment of rent for that period.

In the case of Livingston vs Livingston, 4 J kn. Chy. Rep. 287. twenty years was held an insufficient time to permit a presumption, although in the preceding case, forty four years were held sufficient. See Stewart vs Bridge, 2 Vern. 516, 5 Vez. 565, 3 Vez 10. Many other cases might he cited; but it is deemed unnecessary, as it is confidently believed that no case can be found, which will justify the presumption of title in this case, even if the verdict at law did not exist. The result then is, that all the whole testimony in the case is disposed of, except the deposition of a solitary witness, Baker — And unless his testimony shall he sufficient to take away the estate, the decree ought to have been reversed. For if the lapse of time is insufficient to presume a conveyance, or the finding at law negatives the presumption, there is not one particle of proof, except the deposit ion of Baker, which shew, any claim to the lots. The enquiry then is, does Le prove, a sale and payment, and ought the suppos ed verbal agreement proved by him, to be specifically enforced, after so great a lapse of time?

What does be prove? A sale—a payment? No. He states the parties talked about it, and Barbour agreed, if Rager would pay ten pounds’to a certain individual, which Barbour owed, Hager should have the lot. They started to see the individual and returned and Rager stated to his wife, in the supposed having of Barbour, that he had bought the lot. From this silence of Harbor, presumptions are to be built, which are to take the lot from the heir. It is to be presumed, that if Barbour had not sold, he would have contradicted this statement; and the further presumption is to be added, that the payment was actually made. Thus one presumption must, be built on another, and the whole founded on the recollection of an illiterate witness, deposing not positively to a casual conversation, which he had no motive to remember, and which tool place nearly forty years ago!!

All this is necessary, before the estate can be taken from Barbour’s representative. But suppose that the testimony is clear enough to warrant all the presumptions, it is earnestly contended, that ike testimony of a single witness is wholly insufficient to warrant a specific performance; and on such testimony, the chancellor will never base his decree. The undersigned will venture to give the challenge to his adversary, to produce a single case where surh decree was rendered, A contract to be specifically enforced, must be dear in proof—and not doubtful In its own details. This principle, is laid down by Powell, and in every author which treats of the subject. Here the presumption, is, that-Rager never paid. Had he had the price, he would have paid it to Barbour at once. As he had it not, he went to snake arrangements with Barbour’s creditor. What was that arrangement? Did he procure a release, for Barbour? When did he pay, this unknown and unnamed creditor? All this part of the contract is uncertain; and if it was certain, the testimony of a single individual is insufficient.

Again. Equity would not decree a specific performance, where a court of law would not give redress in damages, and the chancellor anciently used the practice of sending the parties to a court of law, to ascertain first, whether damages could be recovered, 1 Fonb. 27, note. In what attitude would tho complainant have appeared in this instance in a court of law, attempting to recover damages, by an action of assumpsit, for a breach of this supposed promise after so great a length of time, and on such proof? His success must be very precarious, and certainly the chancellor in so much doubt, ought to hesitate.

But if lapse of time is to have any operation in this controversy, it is insisted that its operation is against the complainant or appellee, and not for him. The appellant has a clear legal estate established at law, and to be relieved against, this, the appellee comes into court with a verbal agreement, defective in detail—depending on the frail recollection of one witness for near forty years, and asks an extinguishment of the legal estate, and protection against the solemn adjudication of a court of law. We have already seen, that in state demands, the chancellor will take the statute as a guide in its discretion, and this, though it is not pleaded, 1 Atk. 493. This court, in the case of Allen vs Beall’s heirs. 3 Marsh. 654, decided that a contract barred at law by a simple limitation of five years, could not be specifically decreed. This language, is employed in that decision:

“If the statute would have operated as a bar to an action at law founded upon the contract, it would seem to follow, that it must equally operate as a bar to a suit in equity, founded on the same contract; for a court of equity is as much bound by the statute, as a court of law. In fact, in all cases, the same rules of propriety, and the same rules of decision govern both courts; and it is, therefore, a settled rule, that equity will not decree the specific execution of a contract, upon which a court of law will not give damages.” Here, however, a verbal contract, indefinite and uncertain in its parts, has been. decreed, after a lapse of near forty years, the statute of limitations notwithstanding. To recapitulate; the undersigned will insist, that there is no ground to presume a former title—that if there was, the verdict and judgment has concluded the question—that there is then, no testimony, except the oath of a single witness, and that shewing only an attempt to negotiate. That on the proof of one witness, without any subsequent recognition of the contact. the chancellor will never enforce it—that the supposed contract was unavailing at law, and could not be enforced after five years, and much less after so great a lapse of time. He would further remark, that he has made one or two references to post-revolutionary cases, which are not offered in violation of rule, as authority; but barely to show how the doctrines of equity have progressed and crept into the elementary writers, the Supreme Court of the United States and the New York Chancery.

Barry, for the Appellant.

Statement.

Purchase by Ragor, Whitlook’s ancestor; from Barbour’s ancestor; possession under the purchase, and recovery in ejectment by Barbour.

The court granted the petition, and the cause was re-argued; but the court adhered to the first opinion; and to that effect—

Chief Justice Bibb

delivered the Opinion of the Court, upon the merits of the cause.

[Absent Judge Mills.]

This case is before the court upon a re-hearing granted, after the opinion delivered on the 16th October, 1824, affirming the decree of the circuit court. The former opinion considered, in extenso, the, collateral questions, the reasons and conclusions upon those questions are approved and affirmed.

The want of a history of the case in the former opinion, now requires a statement in reference to the principal question.

Without entering into unnecessary details, suffice it to say, that the possession of Jacob Rager, the grandfather of Whitlock, the appellee, was taken, in 1739, of the lot in the town of Louisville now is controversy; that Phillip C. S. Barbour, the being of Phillip Barbour, had judgment in ejectment: tho continued possession from 1739 to 1811, when the ejectment was instituted. notwithstanding. Because by the opinion of the court in that suit, (which opinion is not new the subject of revision,) neither the positive bar in the enacting danse of the statute nor any presumption from length of time of a conveyance by Barbour of the legal title, could protect the defendant against the legal title deduced by the heir.

Whitlock obtains a perpetual injunction, on his bill in the circuit court.

Facts alleged and upperted by the roofs.

In April, 1822, before the decision in ejectment, Whitlock exhibited his bill to be quieted in his possession, for injunction against the suit at law, and for a conveyance of the legal title. Before the final hearing, Barbour’s lessee obtained a verdict and judgment in the ejectment; the circuit judge decreed a perpetual injunction, and a conveyance of the legal title by Barbear to Whitlock, from which Barbour appealed.

The allegations of the bill, as supported by the proofs, present the following facts:

1st. By verbal agreement, in fall 1784, or spring 1785, Phillip Barbour, residing near Louisville, sold to Jacob Rager, then residing in thse town, lot No. 180 in question, for the sum of ten pounds, settled and adjusted by Rager for Barbour with a third person.

2ndly. The ten pounds were at that day a fair and full price for the lot, being in its natural state and covered with timber.

3rdly. Shortly after his purchase Rager commenced his use by cutting the timber, burning coal on tho lot, and continued so to use it until 1789, then he fenced and cultivated the ground and so continued his possession until his death; and by his last will and testament, (admitted to record in that county in 1790,) he devised this lot to his daughter Sally Rager, who with her mother continued the use, occupation and cultivation, until Sally married Nathaniel Whitlock in 1799.

In a bill for injunction against a judgment in ejectment, the complainant cannot rely on what would prove he had the legal title; the judgment proves that in the lessor; be can go only on a claim in equity.

4th. Upon that marriage Whitlock erected buildings on the lot, and he and his wife lived on it during their lives; the wife died in 1801, and was buried thereon; the husband died in 1809; they left George Whitlock, their son and only child, an infant, the complainant, who has ever since his father’s death been in possession, by his tenants.

5th. That William Johnston, the reputed agent of Phillip Barbour, and as such transacting the business of Barbour, as attorney for said harbour, executed a deed for the lot No. 130, to Sally Rager, reciting therein the sale by Barbour to Rager, and the devise to his daughter; that deed is now loss Johnston is dead, and there is no evidence of any power of attorney from Barbour to Johnston.

6th. That Phillip Barbour left Louisville in 1786 for the eastern part of Virginia, returned to Louisville in 1792—staid a short time, went to Natchez, thence to Virginia, and in 1794, died in Virginia; the appellant, his only child and heir, was born in November, 1786, and in July, 1811, instituted the ejectment.

7th. When Barbour, the ancestor, was in Louisville, in 1792, the lot was then enclosed, cultivated, and possessed by the widow of Jacob Rager and her family.

8th. That from the year 1785, the lot has been known as Rager’s, and afterwards as Whitlock’s; it has always been so assesed for taxes, and the possession of Rager and his devisee and her heir, has continued, unquestioned and undisturbed, except by the action of ejectment complained of.

Upon the bill as framed, and the decree subsequent to the judgment in ejectment, it must be taken, that the legal title is with Barbour: and that the presumption of a power of attorney to Johnston, or of the execution of a deed of conveyance from Barbour to Rager, founded upon length of possession, is cut off by the verdict and judgment in ejectment. The ultimata which the appellant, has gained by verdict and judgment in his favour are, that this court shall not conclude him by a presumption which the jury refused to draw, nor impute to him a negligence amounting to a legal bar, for not asserting his claim sooner, he having the decision at law, that he was not barred by the statute of limitations.

Grounds of equity in complainant’s bill.

Parol contract for land, made before the statute of frauds and perjuries, may be enforced.

Defendant’a objections to the complainant’s equity.

The complainant in this bill, as every complainant in equity must, stands upon the equity of his case. As actor he must make out his own claim to relief, according to the principles and usages of courts of equity in affording relief against legal rights and demands. The bill is not framed for obtaining a new trial at law, nor to re-try any fact there tried: but must stand upon facts which, not sufficient as a defence in the ejectment, are sufficient to constitute a valid claim to the aid of a court of equity. In this view, the record of the proceedings in ejectment, can be of but little moment. The complainant in this bill, could not have defended the ejectment upon an equitable title, nor have demanded, on that trial, specific performance of the agreement now set up as the foundation of his suit in equity.

The grounds of relief are, the verbal sale and purchase, by Roger, of Barbour in 1785; the long continued possession and improvements under it, without let, or hindrance from the ancestor of the appellant, although known to him, and without disturbance from any quarter until the bringing of the ejectment.

The agreement, although verbal, was before the statute of frauds and perjuries, and the possession having been taken under it and continued, the objection that the agreement was by parol does not, of itself, present any obstacle to specific execution. The cases of Ball vs. Ball, 2 Bibb 65—Duvall vs. Guthrie, 3 Bibb 533—Searcey's heirs vs. Morgan, 4 Bibb 96, render it unnecessary to dwell upon that point.

But the argument for the appellant has laboured two objections: the one that the agreement rests upon the testimony and recollection of a solitary witness; the other, that the demand is stale and of such ancient date that a court of law would apply the legal bar, and, therefore, that a court of equity should not relieve.

Testimony of one witness, of the parol agreement for the purchase of land, where the property was accordingly taken possession of, improved and held, is sufficient.

Judge Owslew holds, that the bill for the specific performance of a parol contract for land, could not be maintained after five years, if the defendant pleads the statute, or rely on it in his answer; otherwise, the chancellor or cannot apply the bar.

As to first, the witness is clear and distinct in his narration of the facts; his credit is unimpeached, and his testimony stands confirmed, accredited and supported by the use and occupation, commencing almost simultaneously with the agreement, continued by actual enclosure and cultivation since 1789, asserted by these acts against Barbour, when in Louisville in 1792, and never disturbed until the bringing of this ejectment. The statute of frauds and perjuries did not take effect in Virginia until January, 1787, and no law, statute or common, when this agreement was made, required any particular solemnity, beyond what was observed between these parties, nor the attestation of an agreement by more than one accredited witness. Baker proves the sale and purchase of the lot, and the after use of it by Rager, the fencing and cultivation, in 1789—the building and occupation by Whitlock. In all his statements after the sale, and in the use and occupation, and claim of Rager since 1786, he is corroborated and confirmed by Joyes, Applegate, Kaye, Donne, and Tyler, it is not correct to say that the claim of the complainant rests upon the testimony of a solitary witness, It rests upon the positive evidence of one witness, who stands unimpeached. and upon corroborating circumstances established by many, upon facts that are so attested and assured as to command belief and confidence.

Secondly: It is argued that the claim of the complainant is state, and barred by length of time in equity and at law.

Neither the statute of limitations nor length of time is insisted on by plea or answer.

For want of plea or answer relying on this matter, Judge Owsley is of opinion, that it is unnecessary to decide whether or not, the statute of limitations might have been used as a bar. In his opinion, the continued possession of the appellee and those under whom he claims, would be a conclusive answer to any objection to the stateness of the demand in a court of equity, if we were at liberty to use a discretion as to length of time, and to proceed by analogy to the statute limiting the time for writs of entry; or to proceed according to the accustomed usages and principles adopted by courts of equity prior to the enactment of the statutes of limitations. But he is of opinion, that the case of the appellee is such, that had the lapse of time been insisted on in the defence, the court would not have been at liberty to govern its decision by the usages antecedent to the statute of limitations, nor to proceed by analogy to the limitation for writs of entry. As the equity is founded on a parol contract; he is of opinion, that in such case, the court should not be guided by analogy to the limitation to the rights of entry; but is imperatively bound to act in obedience to the statute limiting the time for bringing suits upon such contracts.

Chief Justice holds, that though the general rule is, he bar by lapse of time, must be set up in the pleading— yet where a great lapse of time appears in the bill unaccepted for, the chancelor may reuse relief on that ground only, though the defence is not made.

Whether or not, if the statute had been insisted on, it would have been proper for the court, under the circumstances of this case, to disregard the peremptory language of the statute and grant relief to the appellee, he considers unnecessary to decide, because he is of opinion, that the statute should have been pleaded or insisted on in the answer, ta entitle the appellant to the effect of the lapse of time.

I concur in overruling the defence against the bill founded on the length of time and statute of limitations, but for different reasons.

I agree that the general rule is, that a defendant must insist on length of time by plea or answer. It is so laid down by Lord Chancellor Hardwicke, in Prince vs Heylin, 1 Atk 494. But whilst I fully concur that such is the general rule, yet then are exceptions, as stated by Lord Hardwirke in Prince vs Heylin—in the cases cited by Francis, Maxim X, “equity regards length of time,” and in others which might be cited. There are state demands which a court of equity will refuse to decree, although the defendant does not, by plea or answer, insist on the length of time as a defence. If the complainant, in his bill of 1826, had asked specific execution of the parrol contract of 1765, without stating any equitable circumstances to account for the lapse of time without suit or demand. I would have been of opinion, that the complainant had stated himself out of the equitable discretion and consideration of the court, and that a demurrer to such a bill would have been proper. I thick such a bill would have required neither plea nor answer; it never can be a sound discretion in a court of equity, to give relief to a person who has neglected his rights for six and thirty years.

Where the purchaser, under an executory contract enters on, improves, and continues in the possession of the land, the lapse of time is no defence to his bill for specific execution.

But the particular circumstances of possession, building and improving, stated in the bill and proof, are fully sufficient in my mind, to account for the lapse of time, to prevent all equitable bars, and to call into activity the powers of the court in granting relief.

The beneficial effects of continual claim to protect a person out of possession from legal bars, are described by Littleton in sections 414 to 443, and in Coke’s Commentaries on them, sections 420 and 430, will suffice to shew that continual claim is made to save the claimant against legal bars by an adversary possession, and so acquire to him who is out of possession, the rights and benefits incident to actual possession. If then, continual claim which is but a claim of possession, a constructive possession only, has at law such potency in preserving the rights of entry and of action, and of preventing legal bars, a possession in fact, continued and uninterrupted can not have less effect, in law or in equity, in preserving legal and equitable rights, and protecting against legal bars.

Actual possession is continual claim of the highest and most notorious character. Possession is the end and aim of real actions; it is the most specific assertion and pursuit of right, which the claimant himself can make. Posession under a claim of right, is an assertion of that claim and an acting on it, every day, month and year, during the continuance of such possession. It is an assertion of claim, be that legal or equitable, with notice to all adversary claimants. It is a notice of claim, from which the adversary can not escape by alleging ignorance of the fact. Law and equity bind him to know it, and to notice it at his peril. At law, the possession makes the time at which the limitation to writs in actions, real and personal, begins to run; the defendant is not required to prove notice upon the plaintiff; he has notice by the very fact of adversary possession.

Possession is notice to all adversary claimants.

Effects of possession in giving right, and entitling the party to a decree for the title in equity.

Possession under an equitable claim, infects the purchaser of the legal title, with notice of that equity; so are the decisions in Knox vs Thompson, 1 Litt. Rep. 353, Hackwith vs Damrou, 1 Mon. 201, Chesterman vs Gardiner, 5 John. Ch. Rep. 33.

Possession is favored in law. The possession of things personal or real, ripen by length of time into a perfect and indefeasible title. The lowest and most imperfect claim to land, by mere naked possession or actual occupation, without “any shadow or pretence of right,” may be ripened by continuance. into an apparent right of possession; next into an actual right of possession, and lastly, into a complete title, comprehending the jus duplicatum, droit droit, or double right of seisin, and right of property combined. In equity, length of possession is equally favored and protected. In the X. maxim of Francis, a reference will be found to many adjudged cases, wherein equity has interfered on behalf of complainants, and relieved against legal consequences; the length of undisturbed use and possession by the complainants being the sole foundation of the relief; to these, many more may be added by reference, to the second American edition of Fonblanque’s treatise on equity, Vol. 1. Chap. 4. Sec. 27, page 329 and following, in the notes. In the case of the East India Company vs Vincent, (2 Atk. 84.) Lord Chancellor Hardwicke said, “there are several instances where a man has suffered another to go on building upon his ground, and not set up a rigid till afterwards, when he was all the time conusant of his right; and the person building, had no notice of the other’s right, in which the court would oblige the owner of the ground to permit the person building, to enjoy it quietly and without disturbance.” This principle is explained and enforced in Wendell vs Vanrensellaer, 1 John. Ch. cases. 354.

That every new right of action in equity must be acted upon within twenty years after if accrues; that equity will not decree stale demands; that courts of equity are guided by the principle, "that wherever the Legislature has limited a period for law proceedings, equity will, in analagous cases, consider the equitable rights as bound by the same limitation,” are true, as general propositions. But the statute of limitations has its provisoes, and the rule of limitation in equity has, likewise, its exceptions. These rules of limitation are founded upon the soundest policy, and not peculiar to this State or Virginia. It has been a fundamental law of state policy, in all countries and at all times, that there should be some limitation of time, beyond which the possessor should not be disturbed, nor the question of his title agitated.

Statutes of limitation and analagous rules in equity are all for the protection of the possessor, never to bar his claim.

An equitable claim united to possession, does not decay by time, but grows in strength as it grows in years, until it becomes an indefeasible title.

But what statute of limitation at law, or rule of limitation in equity, ever ran against the possessor, and in favor of him against whom the possession had been holden? The sublime spirit and essence of the rule of limitation in equity, is given by Lord Chancellor Camden, in Smith vs Clay, (3 Brown’s Ch. Rep. 639.) and by Judge Pendleton, in Ross vs Norvell, 1 Wash. 18.

Lord Camden gives the rule in his own emphatic manner, thus:

“What is the true reason why suits and remedies barred by length of time? Because the party has acquiesced, or neglected to pursue his remedy, and the public peace requiring an end of suits, he abandons this right by submission, or forfeits it by neglect.”

Judge Pendleton, with his usual perspicuity and unclouded intellect, states it thus:

“That after twenty years, a dereliction of the right ought to be presumed, as a debt due by bond, or even a judgment, is presumed paid, if that length of time has elapsed without payment of interest, or some acknowledgment which may repel the presumption ”

Can one who has acted upon his equitable right by taking and continuing possession, be presumed to have intended a dereliction? Can one who has pursued bis equitable claim, by taking the summary remedy of self redress, by entry upon and possessing the land claimed, be said to have acquiesced or submitted to the outstanding legal title? Can he who has impressed his claim upon the soil by cultivation, and fixed it upon the land by improvements, be charged with abandonment, dereliction, or forfeiture by neglect? Every reason and policy which protects a defendant at law or in equity, by length of his possession, against a plaintiff who has slept upon his right, and acquiesced in the adverse possession for a great length of time, equally favors a complainant who has an equitable claim knit to his possession, seeking relief against a defendant who has slept upon his right, and acquiesced in the adverse possession, for a great length of time. To give the rule a contrary effect, would be to torture and vex its strength, policy and spirit, into weakness, folly and suicide.

The discrimination to be made in applying the equitable bar by length of time is, between a complainant who is and has been out of possession, and so has slept, acquiesced, submitted and neglected, for a great length of time, and that of a complainant who is seeking by an equity, to protect from disturbance his possession, long acquiesced in, and submitted to, by his adversary. I can not believe that an equitable claim, united to possession, becomes stale, moulders or decays with age, because it has not been asserted in a court, until that possession was threatened. It grows in strength as it grows in years, and by age may be ripened into the vigour and maturity of a perfect and indefeasible title against all the world—excepting tyrants and lawless conquerors, who feel power and forget right.

The equitable effects by possession and claim united, are similar to the legal effects of recording, enrolling, or registering a legal title. Possession under a claim, is the recording of the claim in the memory of the neighborhood; it is, in reason, and in its practical effects upon society, the most useful, public, and notorious assertion and pursuit of the claim which can be made. It describes and seizes the thing claimed; and like every proceeding in rem, it is notice to all who claim any interest in the thing.

Parol purchases and in 1789, under which possession had been held for 36 years, enforced by perpetual injunction against a judgment in ejectment, recovered by vendor’s heir.

Barry, Denny and Nicholas, for appellant; Rowan, for appellee.

The act of Rager in 1789. in fencing and cultivating, his continued possession thereafter, with that of his devisee and heir, by buildings, improvements, use and occupation, are continued assertions and pursuit of Roger’s claim by purchase from Barbour, of which all concerned were bound to take notice. The claim has not become stale, nor been abandoned, nor neglected, it has been recorded in the memory of the vicinage, preserved by continual claim, renewed with the emblements of each succeeding year; it has been stamped upon the soil, it has been nailed to the buildings, it has been published from the house top.

It is the opinion of the court, after consideration and re-consideration, that the sale to Rager in 1785, by Phillip Barbour, the ancestor, is satisfactorily established by the proof; and that the former decree of this court stand unaltered and affimed.  