
    Richmond.
    Carrington & als. v. Otis & als.
    
    (Absent Cabell,
      
       P.)
    1847. October Term.
    
    1. A Court of Equity will not try a question of title to, or boundaries of land.
    
      2. M being in possession of a lot of ground in R, under an agreement for a perpetual lease from C, makes an agreement with A, who sets up a title to the lot, that upon A’s establishing a title to the lot against C, A shall grant to M, and M will take from A, a perpetual lease of the lot, on the same terms on which M holds from C. Hem :
    1st. A may maintain a writ of right for the lot against C, he not having passed his legal title to M.
    
    2d. M being in possession under C, A may maintain ejectment for the lot against M; and the agreement between them will be no impediment in the way of his recovery.
    3d. The action being brought by A against M, for the purpose of establishing his title, and thus be enabled to execute his agreement with M, A’s recovery in the action of ejectment, will be no bar- to a specific execution of the contract at his instance against M.
    
    4th. A Court of Equity will not sustain a bill by A against M, for a specific execution of the agreement, until A has established his title against C, at law. And though A make C a party to the bill, for the purpose of settling the title, the Court will not decide upon it.
    
      In 1687 a patent was granted to William Byrd for a tract of nine hundred and fifty-six acres of land, on the north side of James river, in the county of Henrico, beginning at the mouth of Shockoe creek and running ^own James river, according to its meanders and windings, (and after other metes and bounds,) thence to Shockoe creek; thence down the said creek, according to the windings thereof, to the place it began. Upon a part of this land the old town of Richmond was laid off. A part of this land came by regular conveyances and devises, in the year 1800, to Richard Adams, who claimed the land which lay east of the channel of Shockoe creek, as it ran in 1687, from the mouth of Shockoe creek for some distance above that in dispute in this cause.
    
      Byrd also owned land on the west of Shockoe creek; and in 1774, the then William Byrd, and two of his trustees, to whom he had conveyed it, conveyed to Joshua Storrs a lot of four acres of ground, lying west of the creek. A part of this lot lay north of E or Main street, in the City of Richmond, and a part of it lay south of that street; and although the deed does not call for Shockoe creek in terms, as a boundary, it seems to have been bounded on the east by that creek. In 1779, Storrs, by his will, gave to his son Gervas, the ground on the north of Main street, and to his two daughters, Hannah and Susanna, the ground on the south of that street: and Hannah dying an infant and unmarried, under the provisions of Joshua Storrs’ will, her share vested in Susanna; and she married Samuel Coleman.
    
    By deeds bearing date the 1st day of September 1786, Coleman and wife conveyed to John Walker forty-one féet front on Main street, running back ninety-four feet to a fifteen foot alley, on an annual ground rent of thirty pounds fifteen shillings. This was taken from the western part of their lot. They conveyed to Thomas Scott twenty-four feet front on Main street, running back to the aforesaid alley, and adjoining the east side of Walker’s lot, at an annual ground rent of eighteen pounds. And they conveyed to Didier Collin, the ground between Scott’s lot and Shockoe creek, by the following description: A certain parcel or lot of ground in the City of Richmond, on the northwest side of Shockoe creek, near the bridge, beginning on the bank of said creek, in the line of Main street; thence up the said Main street to-comer; thence southwardly, at right angles with said Main street, and with the line of said - ninety-four feet to a fifteen foot alley; thence down the said alley to the said Shockoe creek : thence up the said creek to the beginning. An annual ground rent of twenty-five pounds was reserved on this lot. Although these deeds all bear the same date, that to Collin seems to have been first in the contemplation of the parties, as whilst it does not call for Scott’s lot as a boundary, Collin’s lot is called for in Scott’s deed, as his eastern boundary, and Scott’s is called for by Walker’s deed.
    
      Collin seems to have built a house on the western part of his lot soon after his purchase; and to have enclosed the ground between the house and the margin of the creek, by erecting a palisade and planting a row of poplars along the street, and on the creek: and the ground being low and wet, he threw it up in ridges, and cultivated it as a flower garden. Upon the extent of this garden and enclosure, from the house towards the creek, there was great diversity of opinion among the witnesses.
    • By deed bearing date the 1st day of January 1806, Collin and wife conveyed to William and John Miller, forty feet front on Main street of his lot, beginning on the street and running back with the east line of Collin’s house to the fifteen foot alley, before mentioned; on which was reserved a ground rent of forty pounds. Upon the making of this conveyance, Richard Adams 
      seems to have set up a claim to a part of the lot con- * veyed to the Millers. The ground of his claim was. that he was entitled to all the land east of the bed of iShoclcoe creek, as it ran in 1687, when the land was granted to Byrd; and he insisted the creek ran at that time through the ground conveyed to the Millers ; and that it had been diverted further to the east by the building of the bridge over the creek, on Main street. This claim being set up, Collin and wife and the Millers entered into an agreement bearing date the 6th day of March 1806, in which, after reciting the conveyance of the 1st of January preceding, and the reservation of the ground rent at the rate of one pound per foot front; and that a claim to a part of the ground conveyed to the Millers, was set up by Adams and others, and it was uncertain and doubtful whether Collin's title to the same was complete; though the Millers were clearly of opinion it was; but to guard against any dispute thereafter, between said Adams and others and Collin or the Millers, it was agreed between the said Collin and wife and the Millers, that the Millers should only be liable, under the conveyance aforesaid, for the payment of rent for so much of the said ground as they should actually occupy or possess, at the rate of one pound per foot, payable as provided for in said conveyance. And it was also agreed by and between the said parties, “ that in case the said Collin shall, by any means, hereafter become entitled to all or any part of the ground adjoining that so leased by the said William and John Miller, lying between Shorkoe creek and the said Millers, that then and in that case, the said Millers, their heirs and assigns, shall and may be at liberty to have, and the said Collin binds himself, his heirs, &c. to let them have as much of the said ground as they shall choose to take, at the rate of one pound per foot, payable as aforesaid.”
    On the 31st of July 1814, an agreement under seal was signed by Richard Adams and John Miller, for 
      John and William, Miller, which recited that Richard Adams had theretofore agreed to rent to the Millers all the ground lying south of the bridge over Shockoe creek, on the western boundary thereof, beginning at the southwest arch of the bridge, and running in a western direction to the line of Didier Collin on Main street, and extending back the depth of the lot now occupied by the Millers, by deed from Collin and wife, dated the 1st of January 1806, and also by the deed of the 6th of March 1806, at the rate of twenty shillings per foot, for so many feet as the said Adams should establish an indefeasible title in fee simple unto, upon the said street, and running back the depth aforesaid. Adams, in consideration of the premises, covenanted for himself and his heirs, to lease forever to the Millers so much1 of the ground situate as aforesaid, as he should succeed in establishing a full and clear title unto, for the yearly rent of twenty shillings per foot. And the Millers covenanted to pay the stipulated rent, the same to commence from the 6th of March 1806. The agreement then proceeded : “It is further understood and agreed, by and between the parties hereto, that these articles of agreement are intended to secure the said John and William Miller in the possession and right of the lot they now claim under the deed from Didier Collin and wife aforesaid, and are intended only for the event that the claim of the said Adams to the said property, should bo found prior in obligation to the title from Didier Collin and wife, under which the said John and William Miller now claim and hold.” This agreement was executed in duplicate. Richard Adams died in 1816.
    Previous to this agreement, the Millers built one house on the lot conveyed to them by Collin and wife, adjoining Collin's house, and fronting twenty-five feet two inches on Alain street; and between 1814 and 1820, they built four other tenements fronting on Main street, and extending from the house first built to Shockoe 
      creek, as it runs at present. The three of these tenements next the creek, were sold in 1826, under deeds of trust executed by William and John Miller, and the fourth was sold by William Miller, after the death of John, also in 1826; and when this suit was instituted, the tenement next the creek was owned by Otis, Dunlop & Co., the next was owned by the heirs of John Allan, the third by Giles Picot, and the fourth by Nicholas Mills.
    
    When the three tenements were sold by the trustees in the deeds of trust, in 1826, George M. Carrington, who was then the administrator de bonis non with the will annexed of Richard Adams, attended the sale, and gave notice that he claimed the property as belonging to the estate of Richard Adams. It does not seem that Carrington had ever heard of the agreement of July 1814, between Adams and the Millers, but upon his forbidding the sale, Samuel Andrews, who had been the clerk of the Millers for a long time, and in whose possession their books and papers then were, stated that there had been such an agreement between Adams and the Millers, to which he was a witness. Some years afterwards, viz. in 1833, Andrews found both parts of the agreement among the papers of the Millers, of which he informed Mr. Mills, then the owner of one of the tenements, and on his suggestion, Andrews had the agreement recorded in the clerk’s office of the County Court of Henrico.
    
    Previous to 1806, a controversy had arisen between Adams, Byrd's heirs and the Corporation of Richmond, each of whom claimed the land lying between the west boundary of the old town of Richmond and the bed of Shockoe creek, as it ran in 1687. This controversy was carried on in the Chancery Court in Richmond, until 1833, when it was finally compromised; and Byrd's representatives and the Corporation of Richmond, upon the considerations stated in their respective deeds, released all their interest in the ground in controversy to Adams' administrator, for the benefit of his residuary devisees.
    In 1835, George M. Carrington, the representative of Richard Adams, and Adams devisees filed their bill in the Circuit Court for the county of Henrico and City of Richmond, in which they set out their title to the ground lying between the old town of Richmond and Shockoe creek. They allege that in 1687, when the patent to Byrd was issued, Shockoe creek ran much further west than it does at present, and crossed the Main street in Richmond, but a few feet east of Collin's house, so that the ground lying between the creek as it runs at present, and the forty feet conveyed by Collin and wife to the Millers, lay at that time east of the creek. They say that they might insist, as Richard Adams insisted in his lifetime, that Collin was not entitled to the whole of the forty feet; but they forbear bringing into controversy in this suit, the title to any part of the said forty feet, with a view of having their rights to the property between the forty feet and where Shockoe creek now runs, more speedily settled by the Court. They insist, that from the face of the articles of agreement of March 1806, between Collin and the Millers, he did not then claim any -title to this ground. That the plaintiffs having now vested in them the title of Byrd's heirs and the corporation of Richmond, as well as that of Adams, they would assert their title in a Court of Law, but for the impediment arising out of the agreement of July 1814, between Adams and the Millers. That they are bound to execute to those claiming under the Millers, a deed conveying to them the said ground, upon the terms therein stated. That the owners of the ground purchased with notice that the plaintiffs claimed title to it, and that the knowledge of plaintiffs’ claim materially reduced the price. That both the Millers died insolvent, and there is no personal representative of either, and that Thomas Miller, the brother and heir of William, who survived John, was also insolvent. They then made the holders of the four tenements, the widow and heirs of Collin, the heirs of Coleman, and Thomas Miller, parties defendants, and prayed that the defendants claiming under John and William Miller, might be decreed to pay for every foot of the said ground on Main street, the yearly rent of twenty shillings per foot, to be computed from the 6th of March 1806; or else, that they might be prohibited from using the said articles as an impediment to any suits at law which might be brought for the recovery of the property itself, and the profits thereof; and they prayed for general relief.
    The heirs of Collin, and the holders of the property under the Millers, answered the bill. They all object to the jurisdiction of the Court; insist upon the length of possession of Collin and those under whom he claimed; rely upon the lapse of time, and plead the statute of limitations; and deny that plaintiffs have any title to the property. The heirs of Collin deny that Shockoe creek ever ran farther west than at present; insist that Collin always had actual possession to the creek; and that the agreement between Adams and the Millers cannot affect their rights. The purchasers deny notice of plaintiffs’ claim under the agreement with the Millers.
    
    A great mass of testimony was introduced into the cause, as to the former bed of the creek, and the cause of the change of its bed, if it had been changed, which was exceedingly contradictory; and that, it is obvious from the record, was the great point of controversy in the Court below.
    The cause was removed to the Circuit Court of Petersburg, and came on to be heard in that Court, in July 1842, when the bill of the plaintiffs was dismissed with costs; whereupon they applied to this Court for an appeal, which was allowed.
    
      
      Robinson and G. N. Johnson, for the appellants, insisted :
    1st. That the Court had jurisdiction of the case. That it was a bill for the specific execution of an executory agreement. That the Millers and the purchasers under them, had but an equitable title. That the devisees of Adams could not sue Collin’s heirs at law, because these heirs were not in possession; and they could not sue the purchasers from the Millers, because the agreement of 1814, between Adams and the Millers, would have been a bar to the action. Newby v. Jackson, 8 Eng. C. L. R. 126. Nor were they bound to bring an action to eject the purchasers, as the devisees of Adams were bound and willing to execute the agreement of 1814; and if they had ejected the claimants under the Millers, this, itself, would have barred the claim to a specific execution of the contract of 1814. I Sugd. on Vend. p. 245, § 33. They insisted, the claimants under the Millers would have the right to come into equity for specific execution of the contract of 1814, and if they could do it, the devisees of Adams could; as the remedy must be mutual. Adderley v. Dixon, 1 Cond. Eng. Ch. R. 311; Clarke v. Curtis, 11 Leigh 559. On the question of jurisdiction, the counsel referred to Cupit v. Jackson, 6 Exch. R. 244; Mulliday v. Machir, supra 1; 1 Sugd. on Vend. p. 255, § 66; Keppell v. Balley, 8 Cond. Eng. Ch. R. 111-113; Story’s Equ. Pl. p. 74, ch. 4, § 72; Langford v. Pitt, 2 P. Wms. R. 629; Stone v. Anglesey, 1 Bro. P. C. 218.
    2d. It was insisted, that the statute of limitations did not bar the claim of the devisees of Adams, because there had never been an adversary possession by the Millers, and those claiming under them. That the Millers in fact took possession of the ground between the forty feet leased to them by Collin and wife by the deed of the 1st January 1806, and the creek, under their agreement with Adams; and that the agreement of the 6th of March 1806, between Collin and wife and the Millers, on its face, admitted that Collin then had no title to this ground. That if Miller did not take pospesien and hold exclusively under Adams, they took and held under both Adams and Collin; and their possession was to be considered as held under the party shewing the better title. On this question the counsel referred to 3 Dan’l Ch. Prac. 1880; Gilbert v. Emerton, 2 Vern. R. 503; Taylor v. Burnsides, 1 Gratt. 165; Jackson v. Waters, 12 John. R. 365.
    3d. It was insisted, that the lapse of time would not prevent the specific execution of the contract. That the agreement had been partly executed by putting the Millers into possession. That they, and those claiming under them, only held under that agreement; and, therefore, no time would bar the specific execution of the contract. Hopkins’ adm’r v. Cockerell, 2 Gratt. 88. It was further insisted, that the circumstances of the case excused the delay in bringing the suit for specific execution of the contract.
    4th. The counsel went into an examination of the evidence, and insisted that it established beyond ques- - tion, the title of the devisees of Adams to the ground in controversy.
    
      Gregory, Taylor, Lyons and Macfarland, for the appellees, insisted:
    1st. That the Court had no jurisdiction to decide the cause. That the record shewed that the primary question in the cause was a question of title and boundary; a question which a Court of Equity would not try. Stuart’s heirs v. Coalter, 4 Rand. 74; Lange v. Jones, 5 Leigh 192; Speer v. Crawter, 2 Meriv. R. 410; Alley v. Deschamps, 13 Ves. 224.
    2d. They insisted, that the statute of limitations was a bar to the claim of Adams’ devisees. They denied that the Millers took possession and held under Adams; but they insisted that they took possession under Collin, and they could not afterwards do any act which could affect Collin’s title. They insisted, that Collin and those under whom he claimed, had held adverse possession from the date of the deed to Joshua Storrs. That long before this suit was brought, the right of entry had been lost; and therefore equity could give no relief. 1 Lomax’s Dig. 631; 1 Story’s Equ. p. 73; Williams v. Snidow, 4 Leigh 14.
    3d. They insisted, that if the agreement of the 31st of July 1814, between Adams and the Millers, was ever perfected, it had been abandoned. That the agreement had never been heard of from 1814 to 1826, never found until 1833; and then both parts of the agreement were found among the papers of the Millers. That neither of the parties had ever recognized it as a subsisting agreement, or had ever done any act under it.
    4th. They insisted, that the lapse of time was a bar to the claim. That the agreement was made in 1814, and the bill filed in 1835, to enforce its specific execution, not against the Millers, but against bona fide purchasers for value, without notice. That the Millers did not hold under Adams but uuder Collin; that as early as 1823, they, by their deed conveying the property to trustees, certainly repudiated the claim of Adams; and indeed, having originally taken possession as the tenants of Collin, they could not if they would, do any thing to affect his title. That the laches of the plaintiffs was therefore a bar to their claim ; and they insisted that the laches had not been accounted for. And they referred to Carr’s adm’rs v. Chapman, 5 Leigh 164; Page, &c. v. Booth, 1 Rob. R. 161; Watson v. Reid, 4 Cond. Eng. Ch. R. 404.
    5th. They examined the evidence and insisted, that the plaintiffs had not made out a title to the property. That title depended on the fact that Shockoe creek had crossed Main street in 1687, further west than at present, and had been suddenly changed by the building of a bridge in 1798; and they insisted that the evidence left it doubtful whether the creek ever ran further west than at present; and that very uncertainty shewed that if the channel of the creek was changed, it was changed gradually, and therefore Collin, as the proprietor to the west bank of the creek, was entitled to the gradual accretion. They referred to 3 Kent’s Com. 428; Angel on Watercourses 229; Schultz on Aquatic Rights 24, 44 Law Libr.; King v. Ld. Yarborough, 10 Eng. C. L. R. 19; New Orleans v. United States, 10 Peters’ R. 662, And to shew that if the title was doubtful, the plaintiffs must fail, they referred to Wilcox v. Bellaers, 11 Cond. Eng. Ch. R. 266; Graham v. Hendren, 5 Munf. 185; Calverley v. Williams, 1 Ves. jr. R. 210.
    
      
       He was related to some of the parties.
    
   Allen, J.

In the year 1774, Byrd and others conveyed to Joshua Storrs certain lots of land in the town of Richmond, containing four acres. This property, I understand from the facts in the record, was situate on both sides of E or Main street, and was bounded on the east by Shockoe creek.

On the first of September 1786, Samuel Coleman and Susanna his wife, who was a daughter and devisee of Joshua Storrs, by their deed conveyed to Didier Collin that portion of the lot of land aforesaid, situate on the south or lower side of Main street. The deed describes it as beginning on the bank of Shockoe creek, in a line of Main street, and as bounded by Main street, a line at right angles back from the street to an alley, down the alley to Shockoe creek, thence up the creek to the beginning.

Collin entered upon the lot so conveyed to him, occupied a house situate upon a portion of it, and so far as the case shews, was in the actual exclusive occupation of the whole lot up to the boundaries described in his deed. This possession continued uninterrupted, so far as the testimony shews, until the first day of January 1806, when by his deed of that date, Collin conveyed forty feet of the ground in his possession to Willimn and John Miller ; reserving an annual rent of forty pounds per annum. The Millers being about to build on this lot of forty feet, a claim to a part of it seems to have been set up by Richard Adams, Mrs. Byrd and others, all claiming under the original grant to Byrd. It was contended that after the deed of Byrd to Storrs, the creek had been diverted from its original channel by the erection of a bridge across Main street, in consequence of which, land on the eastern side of the creek had been united to the lot originally conveyed to Collin, and to which, therefore, it was maintained, his deed gave him no title. On this claim being made, Collin and the Millers entered into the agreement of the 6th March 1806; which after reciting that Collin had by the deed of January 1806, conveyed to the Millers a piece of ground, part of the same Collin then held and occupied, the claim set up to a part of the ground by Adams and others, provides that the Millers should be liable only for payment of rent for so much of the ground conveyed to them as they should actually occupy at the rate of 20 shillings a foot. And the agreement then further provides that in case Collin shall by any means hereafter become entitled to all or any part of the ground adjoining that so leased to the Millers, lying between Shockoe creek and the said Millers, that then, and in that case, the said Millers shall and may be at liberty to take, and Collin bound himself to lot them have so much of the ground as they should choose to take at the rate of one pound per foot. This agreement, it is argued, shews that Collin did not then consider himself as entitled to, or in possession of the disputed ground, and merely looked to a future acquisition of the title. I do not so construe the instrument. It expressly sets out that the forty feet conveyed to Millers was part of the ground Collin now holds and occupies. The claim of Adams and others embraced part of these forty feet, and the agreement so hir modified the deed as to exempt the Millers from the Payraent the ground rent on so much of the forty feet as they should not actually have, occupy and possess. The Millers were at liberty to take so much of the residue between the ground occupied by them and the creek at the same rates; and the expression that in case the said Collin should by any means thereafter become entitled to the ground between the part leased to the Millers and the creek, did not contemplate any subsequent acquisition of title from others, but referred to his claim under his then existing title. Notwithstanding the doubts created by the claim of Adams and others, the agreement itself recites that the Millers were clearly of opinion Collin’s title was the best. But they wished to avoid controversies, and therefore entered into the agreement. The title they clearly thought to be best, was the title then held by Collin. The claim, however, by Adams and others, threatened a controversy, and the expression in the agreement, taking all the instrument together, is equivalent to the expression that if it should appear Collin was entitled to the land. That the possession and occupation of Collin extended to a portion of the ground now in controversy is manifest even from the pretensions of the appellants. He had actually enclosed and cultivated a portion of the ground for a flower garden. The testimony shews that as far as the ground was susceptible of use and occupation, except for building purposes, he did so use and occupy it. The low swampy land below on the immediate margin of the creek could not be cultivated, but he extended his enclosure into this ground, protecting the land so enclosed from the water at high tides and during freshets, by a palisade and embankment and a row of poplars. The agreement indicates no intention on the part of Collin to abandon a possession thus held and claimed under his deed from Coleman and wife; a possession never disturbed or broken by the actual entry of any adverse claimant. Under this agreement the Millers took possession, and as suited their convenience erected tenements. The agreement did not convey the title to the ground. It was an executory contract binding Collin to let the Millers have the land on the terms specified. In the mean time the legal title so far as the Millers were concerned, remained in Collin ; and as no deed has been as yet executed by Collin, so far as the record discloses, that legal title still remains in Collin's heirs. The possession of the Millers taken under the agreement, constituted the Millers the tenants of Collin. Their possession was his possession; and whatever may have been the validity of his title originally, such possession held under a claim of title, and continued without interruption for a sufficient length of time, would mature into a perfect title against all adverse claimants.

The nature of the possession held by the Millers, is, as against the appellants, conclusively established by the articles of agreement between Richard Adams and the Millers of the 31st July 1814. That agreement recites a previous parol agreement between the same parties, which the evidence tends to shew must have been entered into shortly after the agreement between Collin and the Millers in 1806. We know nothing more of the terms of this parol agreement than the written agreement discloses, and must therefore presume the written contract embodies the original parol agreement. By that contract, Richard Adams agreed to lease to the Millers all that piece or parcel of ground on the south side of the market bridge over Shockoe creek, on the western boundary thereof, beginning at the southwest arch of the bridge, and running in a western direction, to the line of Didier Collin, upon E street, and extending back the depth of the lot now occupied by the Millers under the deed of Collin of January 1806, and the agreement of March 1806, both of record, at the rate of twenty shillings a foot, for so many feet as Adams should establish an indefeasible title in fee simple unto, upon the sa^ street> an<^ running back the depth aforesaid. This recital shews that they were contracting for the ground bounded by the creek on one side, and the line of Didier Collin’s lot on the other side, embracing all the ground in controversy, including as well the ground conveyed by Collin, by his deed of January 1806, as that referred to in the agreement of March 1806,‘ and that the lot was occupied by the Millers under the deed and agreement of Collin. And if any doubt could arise as to what the parties meant by this part of the agreement, it is entirely removed by a subsequent clause inserted for the purpose of clearly indicating what the parties were contracting about. That clause is in these words: “ It is further understood and agreed, by and between the parties hereto, that these articles of agreement are intended to secure unto the said Millers, in the possession and right of the lot they now claim under the deed from Didier Collin and wife aforesaid, and are intended only for the event that the claim of the said Adams to the said property should be found prior in obligation to the title from D. Collin and wife, under which the Millers now claim and hold.”

It will not do to argue that this clause should be restricted to the forty foot lot embraced by the deed of January 6, 1806. For if that be so, as it is expressly provided that the articles were intended to secure the possession and title of said lot, and are intended only for the event that Adams’ title to the said property should be found superior to Collin’s, under which they claimed and held, it would follow there was no agreement by which the Millers agreed to lease the residue of the ground in controversy; and the whole foundation upon which the appellants rest their case for specific execution would fail them. The articles of agreement apply as well to the residue of ground as to the forty foot lot, or they do not. The clause of the agreement last referred to, expressly confines its operation to the lot held and claimed under Collin; and if this was no more than the forty feet, then there is no agreement whatever respecting the residue, no contract to enforce, and the appellants have misconceived their case. But the whole difficulty arises from the use of the word deed in the singular number in this clause. The previous clause shewed that the Millers occupied the whole ground to the creek under two deeds from Collin and wife. The lot so described as an entirety, was that of which they desired to secure the title, in the event of Collin’s title proving defective, and the last as well as the first clause must be understood as referring to the entire lot held under Collin. Both clauses so treat it. In the first it is described as being occupied under the deeds of Collin, and in the last they declare the articles were only intended to secure their possession and right of the lot held under Collin, and though deed is used instead of deeds, it applies as well to the agreement of March 1806 as to the deed of January previous; both were executed by Collin and wife, both are recorded, and both are styled deeds in a previous part of the articles.

We then have the case in which Collin, claiming under a deed which purported to convoy ground bounded on one side by a creek, enters upon and holds possession of the land up to this natural' boundary, exercising all those acts of ownership over it which the condition of the property and his own convenience made expedient. A portion of it he conveys by deed, and enters into a contract binding himself to lease the residue to the Millers. The Millers claim to hold under him ; and Adams¡ at the time of entering into the contract which is the foundation of this suit, is apprised of the fact that the Millers claim and hold under Collin, and is referred to the deeds of record, which disclose the nature of their claim.

Even if the point whether the creek has actually changed its channel since the deed from Coleman and wife, of the 1st of September 1786, was freer from doubt than the evidence makes it; still, whatever change was made, or however brought about, whether the result of slow and gradual and imperceptible accretion, or caused suddenly by the erection of both or either of the bridges, Collin is seen holding to the creek as his boundary, and his possession remains undisturbed.

It is vain to contend, in the face of the articles of 1814, that the Millers first took possession of the disputed ground by virtue thereof, and is therefore to be considered as holding under Adams. It was probably a matter of indifference to the Millers to whom they paid the rent, provided they were secured in their possession. They desired to render the property productive by building upon the ground. Their agreement with Collin of the 6th March 1806, shewed they thought the title of Collin was the best; but to secure themselves against contingencies, they entered into the contract with Adams to pay him the same rent, should he establish a better title. But they did nothing to compromit the title of their landlord. To have done so, would have been acting in bad faith; and therefore, on the face of their contract with Adams, they set out that they hold and claim under Collin; and this Adams, by becoming a party to the deed, admits to be the fact.

In this state of things, how is it possible for a Court of Equity to investigate and determine, as between Collin and Adams, which has the legal title. Collin relies on his deed and possession under it. Whether the boundaries of the deed embraced the land in controversy or not, or whether there has been an actual, exclusive and continued possession in Collin and those holding under him, are questions which Collin cannot be called on to litigate in equity. He rests upon his legal title, whethor acquired by deed, or disseisin under colour of his deed, and actual continued possession: and a Court of Law is the appropriate forum to determine upon the validity of his claim. The articles of agreement between Adams and the Millers, create no equity against Collin ; he was a stranger to them. And it would not seriously be contended, that an executory contract between a tenant and third person, setting up a claim to the leased premises, by which the tenant agrees to purchase of this claimant, should he establish a good title thereto, will give a Court of Equity jurisdiction as against the landlord to investigate and decide upon the validity of his legal title.

Until Adams has shewn he has a clear title, he has no right to call for a specific execution of the contract. This he could only do by establishing the superiority of the title he sets up, to that by which Collin and his representatives have heretofore held and still hold the actual possession, through their tenants claiming under the executory agreement of March 1806. The agreement between Adams and the Millers, looked to some proceeding by which the former was to shew a better title than the one derived from Collin; or, in the words of the agreement, that his claim was prior in obligation to the title of Collin, under which the Millers then claimed and held. There could have been no difficulty in proceeding at law. The freehold being in Collin, he would have been the proper tenant to the praecipe in a writ of right; and the parties in possession, claiming to hold under the executory agreement with Collin for a lease, could have been sued in ejectment. Nor do I conceive that such suit against the tenants in possession, would have been a disaffirmance of the articles of 1814; or that such articles would have interposed any impediment to the action. If the Millers had entered and held possession under these articles, the authority of Newby v. Jackson, 8 Eng. C. L. R. 126, might have some application ; hut when the articles upon their face disclose, that so far from so entering and holding under Adams, they claimed and held under an adverse title; a£1<^ s0 far from surrendering the possession under this adverse title, the articles were to be inoperative until Adams established a better title, they could not surely interpose the articles to defeat the action commenced to try the validity of the title under which they held ; or contend that a verdict and judgment establishing the superiority of the title of Adams, disaffirmed an agreement providing for that contingency and inoperative until it occurred.

The obligation to establish a better title to the premises has not been complied with by Adams. On the contrary, the first step a Court of Equity is asked to take, is, to investigate a question of boundary upon the depositions of witnesses, to pronounce upon the legal effect of the conveyance to Collin, and to determine upon the effect of the adverse possession held by Collin and his tenants. It seems to me, these are investigations, which, as between Collin and Adams, a Court of Equity, under the circumstances of this case, has no right to make; and that, until these questions are settled, the appellants had no right to ask for a specific execution of the articles of 1814.

If, by the delay, a claim originally valid, (but which on the proofs, I should consider very questionable,) has now, by the lapse of time and the statute of limitations, been irretrievably lost, the appellants must impute the loss to their own laches. Adams, by his agreement, assumed the burthen of shewing a superior title to that of Collin, and if he intended to insist on the contract, good faith required of him promptitude and dispatch.

I think the decree dismissing the bill was correct and should be affirmed.

Baldwin and Daniel, J’s concurred in the opinion jy -r i Ait of Judge Allen.

Brooke, J.

I concur with my brethren in the affirmance of the decree in this case, and with my brother Allen, in his able statement of the case. But I differ with him in the consideration he has given to the agreement by one of the Millers and Richard Adams. I think there is evidence in the record, that that agreement was abandoned by the parties to it. It was a conditional lease, and the substance of it was, that when Adams should shew a title to the property, of prior obligation to the title of Collin, under whom the Millers had a lease, and to whom they paid rent, that then they were to hold under Adams, and pay the rent to him. Collin had been in possession of the premises, claiming under Coleman and -wife, who claimed under Storrs, who claimed under a deed from Byrd’s trustees, executed in the year 1774; and these parties had been in possession of the land in question, from that time to the date of the lease from Adams. But one of the Millers signed that lease, though they were the joint lessees of Collin. From 1806 to the commencement of this suit, the rent was paid to Collin ; and we hear not a breath of the agreement until both parts of it were found in 1833, among the papers of the Millers in the possession of Andrews, who had been their clerk ; found long after the sale of the property by the trustees of the Millers to the present holders.

It is true that Carrington, the personal representative of Adams, claimed the property at that sale ; but he produced no deed or title to it, and his claim was not regarded by the purchasers.

The excuse assigned for this delay in asserting the title, is the pending suit with Byrd’s trustees and the Corporation of Richmond. But there is nothing in the record to shew that that suit involved any question in relation to the land in dispute in this case, so as to delay the claim of Adams under the agreement of 1814. That suit was compromised in 1833, and from 1833, when the agreement was found in the possession of Andrews, no suit was brought until 1835. I think it was because Adams had abandoned the agreement when it was given up to the Millers. His reasons for abandoning the agreement may have been because the other Miller would not execute it; or because he could not perform the condition by shewing a title to the land prior in obligation to the title of Collin. I think that for one or both of these reasons, he abandoned the agreement when he surrendered it to the Millers.

The agreement admits that the Millers were in possession under Collin, who, and those under whom he held, had been in possession of the premises from the date of the deed in 1774 from Byrd’s trustees. I think they were in adverse possession from that time; and whatever was the title of Adams, it was lost by the act of limitations; and I think the bill for the specific execution of the agreement ought to be dismissed.

But the counsel for the plaintiffs, abandoning the agreement, have set up another claim to the land in question. Adams held the land on the east bank of Shockoe creek, and Collin and the Millers under him, held on the west bank of the creek. Each claimed the creek as his boundary; and it is insisted that the building of the stone bridge above, by the Corporation of Richmond, changed the course of the creek, and threw it to the east; and that this change was by avulsion.

For the purchasers under the Millers’ deed of trust, it was insisted, that if the channel of the creek was changed, it was by alluvion ; and there has been a great waste of authorities on the point. But I think if the creek has been changed, which is very doubtful on the testimony, if it was changed by the building of either of the bridges erected by the Corporation of Richmond, it neither changed by avulsion or alluvion. If it was changed by the building of either of the bridges, and Adams was injured by it, he had a plain remedy by an action at law against the corporation for damages. The Millers held the land on the west side of the creek, and ' were entitled to the land left on that side by the change of the creek by the building of the bridges or either of them.

Decree dismissing the bill affirmed.  