
    Mayo v. Murchie.
    October, 1811.
    1. Lottery — Parol Evidence. — if the owner of a tract of land, on a navigable river, was authorized, by law, to establish a town upon it, and dispose of the lots by way of lottery; and, in the scheme of such lottery, as advertised, adventurers therein were assured that the lots should be laid off in a town "convenient to the river, with public landings;" parol testimony is admissible, in aid of the inference deducible from such printed proposals, to establish an equitable title in the inhabitants of the town, as tenants in common, to a piece of ground, between the river and the lots actually laid off for the town.
    2. Chancery Practice — Suit for Legal Title to Land— Parties. — Where a plaintiff in equity, having the equitable title to land, sues for the legal title, the person holding such legal title is a sufficient defendant; without making the person, of whom he purchased, a party to the suit.
    
    3. Chancery Jurisdiction — Consent of Parties — Effect. —Although consent of parties cannot give a Court of equity jurisdiction, or supply the total absence of other necessary parties; yet such consent may dispense with the strictness of form, and enable the Court to decide a cause in relation to parties, who are, in fact, though possibly, irregularly, before it.
    4. Chancery Practice — Bill by Surviving Trustee.— Under what circumstances a single surviving trustee of a town is competent to be the plaintiff in a bill in equity, for the purpose of asserting the right of the inhabitants generally, to land laid off and annexed to such town as a common.
    John Murchie, surviving trustee of the town of Manchester, filed his bill in the Superior Court of Chancery, *for the Richmond district, against John Mayo, Charles Carter, surviving trustee of William Byrd, and William Nelson, his agent; stating, “that, in the year 17 — , Colonel William Byrd proposed to found the said town of Manchester, by way of lottery; and agents were appointed by him and his trustees, for superintending the laying off and bounding of the same; that the said agents proceeded to execute the business thus confided to them; and, in making out the boundaries of the town, they expressly declared and set apart the slip of land which lies between James River and the lots of the said town, near what is now called Mayo’s bridge, as part of the said town, to be annexed thereto, and held by the inhabitants thereof, as a common, forever; and the same hath been so held and enjoyed by the inhabitants of the said town ever since; that, although this piece of ground is not described, as a common, in the plan of said town, yet that circumstance is not material; because none of the streets, or other public ground, belonging to the said town; is there described; and, therefore, it might as well be objected, that the town has no streets, as that it has not the common aforesaid; for both equally rest upon the verbal declarations of the agents, and the tacit consent of Colonel Byrd and his trustees ; that this consent was manifested by various acts, and, particularly, on a certain occasion, when Colonel Byrd, through mistake, had sold a piece of the said slip of land to James Ryle; for, immediately on his discovering it, he gave up the sale, and made the said Ryle compensation for it in an adjoining part of the said town ; that the said slip of land is absolutely necessary to the said town, in order to enable the inhabitants thereof to approach the river with facility; and, without it, the communication between a great part of the town and river, will be entirely cut off; although, in the printed scheme of the lottery, public landings were promised them; that all these facts were well known to-Mayo, who, nevertheless, for a trifling consideration, ^purchased the said Byrd’s right to the said slip of land, and obtained a deed therefor (although the same was then in the possession of the said town) from him and two of his trustees, without any warranty; a circumstance which of itself, evinces a doubt about the title; and this is further manifested by the failure of the said-Mayo, to assert his right thereto during his lifetime; but John Mayo, his son and dev-isee, alleging, (since the death of the said-Mayo,) that the legal estate was never conveyed to the said town, and that it passed by the said deed to the said-Mayo, and from him to the said John Mayo, his devisee, had commenced an action of ejectment against the complainant, as trustee of the said town, in the Richmond district Court, and threatened to turn him and the said inhabitants out of possession ; notwithstanding their equitable title aforesaid.” The prayer of the bill, therefore, was, that John Mayo be enjoined from all further proceedings in his said suit; that he, and the said Charles Carter, by William Nelson, his agent, appointed by the High Court of Chancery, be decreed to convey the said slip of land to the complainant, as trustee for the said town; that the complainant, and the inhabitants of thg said town, be quieted in the possession thereof; and for general relief.
    The defendant, John Mayo, by his answer, “admitted that the late Colonel William Byrd did institute a lottery; but, for the particulars thereof, referred to such proof as the complainant should produce;” averring, ‘‘that the defendant knew nothing of the agents, of the said lottery, having declared or set apart the slip of land, in the bill mentioned, to be annexed to the said town, and held by the inhabitants as a common; nor doth he believe it to be so; and, among the proofs to the contrary, he appeals to the inability of the complainant to produce any written or printed document, which was ever made public, whereby it was so set apart.” He denied, “that the said inhabitants ever enjoyed the said *slip of land by virtue of an assertion of right on their part, or any dereliction of right on the part of John Mayo, (the defendant’s father, from whom he ultimately derived a title,) or of the defendant himself, or any other person, who had claimed under the said John Mayo: that the reasoning of the complainant, drawn from a supposed omission to describe the streets and public ground in the plan of the said town, need not (as the defendant believes) be answered; but, if necessary, the defendant would only refer to the plan itself, and to the impossibility of laying off the lots without laying off the streets, &c. as a consequence; that this defendant would not yield to any declarations said to be made by Colonel Byrd, or his trustees, nor to any act, which they may have done, in derogation of the deed from the said Byrd, and two of his trustees, (Peyton Randolph and John Page,) in the year 1774; that the defendant cannot speak of any act of Colonel Byrd, concerning a piece of the said slip, to James Lyle; but no such act could have varied the right of this defendant; that, as to the necessity of the said slip to the said town, this defendant holds it to be immaterial, if true; but the complainant himself seems to admit, that the inconvenience to the inhabitants is only on the ground of the degree of facility with which the river is approached; that the landings may be approached without the use of the said slip of land; that the said John Mayo, when he obtained his deed aforesaid, did not know, think, or believe, (as far as this defendant believes,) that the said slip of land was in the possession of the said town; that the compensation, expressed in the said deed, was a fair one, in point of amount, and from the nature of the bargain; that the said deed was conformable to deeds, of that kind, in general; and no disadvantageous inference ought to be made from the want of a warranty ; because the trustees were not in the habit of making a warranty; and Colonel Byrd, it is believed, made one to the trustees, in the original conveyance from him to the said trustees; that this defendant *does not believe that the said John ever did doubt his title to the-said land; but, on the contrary, it is notorious that he did frequently assert his title thereto; that, in consequence of the bill and suit of the complainant, this defendant had suspended the prosecution of his ejectment, and had obtained a decree of this Court against the said trustees; to which, and the proceedings therein, this defendant refers, in order that the whole of this controversy may be finally heard in this Court.”
    To this answer, the plaintiff replied generally ; and commissions to take depositions were issued.
    Daniel Moore deposed, that, at the time the town of Manchester was laid off, he acted as one of the chain carriers; and that the slip of ground between the mill canal and the river was run round with the chain, and was not laid off into lots, but left as a common, or street, for the use of the said' town.
    James Lyle deposed, that, in the beginning of the year 1769, he applied to the late Colonel William Byrd to purchase from him half an acre of the land lying below the mill, between the range of lots and the river, whereon to build a wheat house; promising to leave a street between the land meant to be purchased, and the range of lots; that Colonel Byrd agreed that he should have half an acre of that land for the sum of twenty-five pounds, which he paid in hand to the said Byrd, who promised to make him a deed for the same when required ; that, shortly afterwards, Colonel Archibald Cary waited on the deponent, and expressed his surprise that he should purchase, or that Colonel'Byrd should offer to sell or dispose of any of the land between the river and the mill canal, and said, that neither Colonel Byrd, nor his trustees, had any right to sell or dispose of one foot of that land; adding, that Colonel Byrd, and his trustees, had appointed and empowered him, with others, (viz. Benjamin Watkins and James Patteson, as the deponent believed,) and had given them full power and authority to survey and lay off the town of Manchester, with ^streets, and such other conveniences as they thought right and proper; and that, after mature deliberation, the managers resolved and concluded, that the whole of the land lying between the river and the mill-race and canal, from the fishing place to the upper extremity, except the ferrj* lot, and the three lumber and wheat houses, belonging to James Lyle, Thomas Yuell, and Alexander Stewart, with egress and regress, should be given up and allotted for a common to the town of Manchester forever. Soon after this conversation, the deponent waited on Colonel Byrd, and informed him thereof; Colonel Byrd said, “he thought that land had still been his own, and at his own disposal, but it was true that he and his trustees had trusted the whole management to Colonel Cary, and the others, to lay off the town of Manchester, with streets and conveniences, as they thought right and proper; and whatever they had done in this business, must be binding on him;” and added, “his sale of the half acre of land, being part of the common left to the town of Manchester, must be void ;” which the deponent readily agreed to, and received back the consideration money he had paid. After this, there seemed to remain no doubt of the ground contemplated being a common to the said town.
    The deposition of David Patteson, formerly a manager of Colonel Byrd’s estate, at the Pall’s Plantation, was to the same effect with that of James Lyle, in relation to the transaction between Byrd and Lyle. This witness further stated, that, in December, 1769, being in Williamsburgh, on the business of Colonel Byrd, his employer, he understood from him, that Peterfield Trent wished to buy some of his lots; on a conversation with Trent, the deponent found he wanted a part of the aforesaid slip of land near the canal bridge, and told him he would not make such sale, well knowing the trustees of the town of Manchester would object, as they had done in the case of Mr. Lyle; that, after some time, Trent said he would give 201. for the quantity wanted, *and if Colonel Byrd had no right, the loss was to be his; on which terms, it appears, the bargain was made. This deponent had many conversations with Colonel Byrd on the subject of the slip of land aforesaid, and recollects that, in one of them, the said Byrd observed, “it was very hard” (or strange) “that they objected to his sale of it;” or words to that effect. The deponent always considered the said land between the canal and river, laid off as a common, or street, for the benefit of the lots on the north side of the town of Manchester, which extends northwardly to nearly the mouth of the canal; below which, there can be no communication with the river, without passing through that slip of ground, except by the street and road leading to the bridge. This witness also stated, that Byrd’s trustees were in the habit of adding their names to deeds signed by him; without making further inquiry.
    Samuel Weiseger deposed, that he removed ■from Col. Cary’s to Manchester, in the fall of the year 1773; that the slip of ground, between the mill canal and the river, was considered, by himself, and the inhabitants of the town at large, as a common belonging to the said town, and used and occupied by the inhabitants as such; and the same has ever since been so occupied and used by the said inhabitants; and he never heard that right disputed, until Mr. Mayo commenced his suit in the district Court of Richmond.
    The deposition of Nathaniel Quarles, another inhabitant of Manchester, was to a similar effect.
    Robert Goode deposed, that about forty years ago it was contemplated by the late William Byrd, and his trustees, to dispose of two tracts of land, one on the north, and the other on the south side of James River, by way of lottery; supposing that there would be a sufficiency of land on each side of the river to comply with the terms, or plan, as advertised, for the said lottery, and to reserve the Pall’s Plantation ; and Benjamin Watkins, the surveyor, first made a survey of the whole of the *land to be disposed of by way of the lottery, and found, that after allowing one or two thousand acres to the Porge Lot, there would not be a sufficient quantity of land for the purpose of establishing the town of Manchester, according to the plan of the lottery as advertised; and this deponent, having been long acquainted with the different land marks, was frequently called Upon by the surveyor, who told him that he should want land to make out as many lots as were promised to those who would become adventurers in the said lottery; the said surveyor then took out one link from his cnain, and continued surveying, until the merchants and others, who were tenants, made a positive objection to having their tenements mutilated, or divided into lots. This objection was also made by other individuals, placed in the same situation, on the Richmond side; and they unanimously declared, that they would not become adventurers in the said lottery, but would oppose it if their tenements were not left entire; and such was the opinion of Colonel Byrd’s friends, generally, on finding that they should want the aid of the merchants to carry the lottery into effect. Colonel Byrd’s steward and agent, (James Patteson,) as well as the surveyor, thought it proper to decline surveying and laying off the lots until they could hear from Colonel Byrd, and his trustees, upon this subject; they were so dispersed that it was some time before the surveyor could be instructed in what manner he should proceed; at length, after a considerable lapse of time, Mr. Patteson, the agent, and Mr. Watkins, the surveyor, were directed to leave the tenements entire, and to substitute twenty-five acres of land more, on the west side of that proposed for the establishment of the town of Manchester; and, at the same time, that these instructions were given to the said surveyor, he, with his former coadjutor, was informed, that, as so many difficulties had, and might, probably, arise, they were, in future, to advise with Colonel Archibald Cary, who was fully authorized to direct and control, *should any other difficulty arise in laying- off the said town. The surveyor then proceeded in laying off the said town of Manchester into lots, until he arrived at the canal, between which and James River there was a narrow slip of land which he said he could not lay off into lots, in any manner, without manifest injury to the lots on the other side of the canal; particularly, as a free and direct passage, from all the lots in the said town, to the river, was guarantied to the adventurers in the lottery, by the trustees, and was accordingly advertised to be so. When this difficulty arose, Mr. Watkins, the surveyor, and Mr. Patteson, the steward, sent immediately for Colonel Archibald Cary, who (the deponent knows) was fully authorized by Colonel Byrd, and his trustees, to act for them in any matter respecting the laying off the lands for the establishment of the said towns of Richmond and Manchester. Colonel Cary went up the next morning, and, on his way to Manchester, called on the deponent; they rode together to the canal, where they met the surveyor and Mr. Patteson on the land now in dispute ; and, after some time, it was unanimously agreed not to lay off the land between the canal and James River, into lots. Mr. Watkins, the surveyor, then observed to Colonel Cary and Patteson, that he was apprehensive that he should want land, or room, to make out the number of lots, on this side of the river, for the town •of Manchester; Colonel Cary then directed him to measure the slip of land between the canal and the river; which was accordingly done; and when the quantity was ascertained, Colonel Cary directed the surveyor to add one row of lots on the back part of the said town of Manchester, as they had determined to leave all the land between the river and the canal for a street and common to the said town; and fourteen lots were, accordingly, added, which may now be observed as having no cross streets to them. The deponent had ever believed, and never had a doubt, but that it was left as a common for the town, and that it was acknowledged by every person ^(except two or three) that Colonel Byrd had no right to sell the said land; for they were all satisfied that it was the case; except Colonel John Mayo, the father of the present John Mayo.
    This witness further stated, there are some lots below the mill which, if the slip of ground in question were to become private property, would be deprived of all communication with the other parts of the town, but by •curtesy of the person claiming, or by crossing a navigable canal; as they are bounded ■on the other two sides by the Porge Lot, and Cary’s fishery lot, which are private property; that it might, just as well, be asked, why the streets were not marked as streets in the plan of the town, as why this piece of ground, left as a common, was not marked in the same plan as a common ; that, on the premises in dispute, there was a wharf built by Col. Byrd, for the convenience of shipping tobacco and ■¡anding goods, as also a public ferry below the wharf; and that the navigation above that wharf, for tide water craft, was practicable but a few yards; it being very rocky above. Being asked, by the defendant, “what authority did Col. Cary exhibit when he undertook to act for Colonel Byrd and his trustees?” the witness answered; “I was present when Colonel Cary appeared before James Patteson, agent for Colonel Byrd, and Benjamin Watkins, surveyor; and Colonel Cary did then and there produce a bundle of papers, which had the appearance of letters, which were handed by Colonel Cary to the said surveyor, and the said Patteson, as his (the said Cary’s) authority for giving them the directions for leaving the piece of ground in question as a common for the town of Manchester. One of those papers was a letter from Charles Turnbull, one of the trustees; and another a letter from Mr. John Wayles, both handed to the said Watkins and Patte-son, for the purpose aforesaid; and the letter of Mr. Wayles was handed about in the then circle, as containing a most difficult handwriting to read; and its contents, with other papers then produced, were found, *by the surveyor, and James Patteson, to be full authority for them to leave the before-mentioned piece of ground as a common for the town of Manchester; and, from that time, I never heard of a doubt suggested, that it was left as a common to the said town, until the late Mr. Mayo made the purchase; every person who then heard of it, and had any concern in it, paid little regard to it, considering Mr. Mayo as having bought a bad title.”
    The three last-mentioned depositions were taken the 14tn of September, 1805, “in the 'presence, and by consent, of the parties.”
    Austin Taiman de.posed, that, about the year 1784, he was employed by the father of the present defendant, to build a vessel for him, which he, the deponent, did on the land between the canal of the defendant’s mill and James River, which is the land now in dispute between the said parties; that the said Colonel John Mayo, deceased, always exercised the right of ownership over the said land, by building and repairing vessels on it, getting stone, cutting down and taking timber for his own use; that the said deceased claimed the land, and the deponent never heard his right doubted until since his death. The deponent did not suppose that he would have allowed any other person to use the same privileges on the premises, and considered that land as much his, from all he had understood, as the bouse he lived in.
    The exhibits in the cause are sufficiently described and commented upon, in the following opinions of the judges.
    In May, 1807, the cause came on to be heard, “by consent of parties, as to the defendant, John Mayo;” whereupon Chancellor Taylor decreed, “that the said defendant do release all his estate, right, title, and interest in the land in bill mentioned, to the plaintiff and his successors, trustees of the town of Manchester, for the use of the said town ; that the said town be quieted in the possession thereof; that the said John Mayo be perpetually enjoined from commencing1 or prosecuting any ‘action at common law for recovering the same; and that he pay, to the plaintiff, the costs about this suit expended. ”
    From which decree the defendant, Mayo, appealed.
    The cause was argued in the Court of Appeals, on the 17th and 18th days of December, 1812; and reargued the 1st, 2d, and 3d days of December, 1813.
    Williams, Wirt, and Hay, for the appellant.
    Samuel Taylor, and Call, for the appel-lee.
    
      
      Lottery — Construction of Deed. — See principal case cited with approval in Lyons v. Brown, Gilm. 123. See generally, monographic note on “Lotteries” appended to Phalen v. Com., 1 Rob. 718.
    
    
      
      Printed Proposals — Parol Evidence. — As deciding that parol testimony was admissible in aid of the inference deducible from the printed proposals, to establish an equitable title of the inhabitants of the town as tenants in common, the principal case is cited in Skeen v. Lynch, 1 Rob. 191.
      Evidence — Printed Reports. — The principal case is cited in Taylor v. Com., 29 Gratt. 786, 789, 795, where the question arose as to the right to introduce in evidence the report of the principal case as contained in 3 Munf.,the original record in the case having been lost by fire.
      Railroads in Streets — Rights of Lot Owners to Compensation. — Concerning the question as to whether owners of adjoining lots are entitled to compensation from a railroad company legally occupying a street, see Spencer v. R. R. Co., 23 W. Va. 423, citing the principal case on this point. See the principal case also cited in Yates v. Town of Warrenton, 84 Va. 340, 4 S. E. Rep. 818.
    
    
      
      Chancery Practice — Parties.—The rule is general and well established that all persons concerned in interest shall be made parties, for two purposes. 1. to settle the controversy all around; and 2. because no decree should be made effecting the interest of any man, unless he has had an opportunity to contest it; for if all parties are not before the court contradictory decrees may result, between which the right of a party may be overlooked or crushed. Tuckeb, P., citing the principal case in his dissenting opinion to Buck v. Pennybacker, 4 Leigh 11. To the same effect, see the principal case cited in Buck v. Pennybacker, 4 Leigh 9; Collins v. Lofftus, 10 Leigh 10; Morgan v. Blatchley, 33 W. Va. 158, 10 S. E. Rep. 282. But a person, to be a party in interest, must be interested in the property involved in the issue. It is not sufficient that he may be interested in the question litigated, or that by the determination of the question litigated, he may be a party in interest to some other suit growing out of the decision of the question litigated. Elcan v. Lancasterian School, 2 Pat. & H. 69, citing the principal case as authority.
    
    
      
      Note. The doctrine here laid down is not consistent with that expressed in the first marginal note to the case of Hoover v. Donnally, 3 H. & M. 316. But see Edgar v. Donnally & Jones, 2 Mnnf. 387, pl. 2; and ibid., 390, 391. — Note in Original Edition.
    
    
      
       Chancery Jurisdiction — Consent of Parties — Effect.— See, citing the principal case on this subject, Echols v. Brennan, 99 Va. 154, 37 S. E. Rep. 786;, Callaghan v. Circle, 12 W. Va. 571 et sea. See further, mono-graphic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
      Chancery Practice — Construction of Bills, — To the point that “a rigid and technical construction of bills and proceedings in equity” is exploded in favor of substance, the principal case is cited in Baugher v. Eichelberger, 11 W. Va. 220; Sturm v. Fleming, 22 W. Va. 412.
    
   Saturday, February 26th, 1814, the judges pronounced their opinions, seriatim.

JUDGE COAETER.

The land, concerning which this controversy exists, was formerly a part of the Fall’s Plantation, belonging . to the late Col. William Byrd, and lies on the south margin of James River, bounded by that river on the north; and on the east, south, and west, by the lot attached to the fishery, the lots of the town of Manchester, which are laid off north of the forge, or mill canal, and by the said canal to its junction with the river above. It joins no other lots of the town, except those above mentioned, being severed therefrom by the forge prize, or canal aforesaid, which lies between this land and the balance of the town. Previous to the establishment of Manchester, and that part of Richmond called Shockoe, the whole of the lands belonging to Byrd, on both sides of the river, had been conveyed, by him, to trustees, who were also his creditors, for the payment, as well of their own debts, as what he owed to others, he being about to go to Europe. Those trustees made sales of considerable portions of the property conveyed to them, but so far from being paid their own debts, they were induced (particularly John Robinson) to make large advances to said Byrd’s other creditors, in his absence; ‘and, in the year 1770, the debt due to said Robinson’s estate, amounted to about 20,0001. In the mean time, however, Byrd had returned to Virginia; and, in August, 1767, he, and his trustees, propose to lay off the towns of Manchester and Shockoe, and to dispose of the same by way of lottery, the scheme of which was then published. There were various improved tenements, fisheries, ferries, &c., which formed the large prizes; and, amongst others, on the Manchester side, was a double forge, or mill, with two and a half acres of land adjoining; the use of the landing; the canal, with ten feet on each side; and 2,000 acres of back land, estimated at 8,0001. This lottery was to be drawn in June, 1768, and, I presume, was so drawn, as the act of Assembly, establishing the towns, passed in 1769. It is not pretended that the piece of land in controversy was recognised by the survey and plan of the town, or by the act of Assembly, either as a street or common, or as otherwise appurtenant thereto; on the contrary, except where it joins a few lots laid off below what is now Mayo’s Bridge, it is severed from, the town by the forge prize aforesaid, one of the largest in the lottery. |

After these transactions, to wit, in May, 1770, Byrd, and his surviving trustees, by deed, acknowledging the debt due to Robinson as aforesaid, convey to Edmund Pendleton and Peter Eyons, his surviving administrators, all that tract of land in Chesterfield, lying on James River, near the falls thereof, and all the other lands, tenements, lots, and messuages,, lying in said county, and in the county of Henrico, belonging to said Byrd, or the trustees, and all the other lands and slaves comprised in the other deed to the first trustees, not before sold by them, or either of them, and which they have now a right, by virtue of said deed, to sell; (except the several prizes drawn by fortunate adventurers in the said lottery, &c.;) to be sold, first, to pay any debts or securityships due, or obligatory on the surviving trustees, then, the debt due their intestate, &c. The land in controversy, ‘therefore, not being a prize drawn, nor a street belonging to the town, the fee remained in Byrd, and his trustees, and by this deed was passed to Pendleton and Eyons. The surviving trustees reserved the right of selling the premises, themselves, until the 10th of December,_ 1770; after which, Pendleton and Eyons, if their debt was not then paid, were to have the right to proceed to sell, &c. to effect which, said Byrd was to give all assistance in his power. This deed was acknowledged on the day of its date, by all the parties thereto, and recorded in the general Court.

In the year 1774, Byrd, and two of his surviving trustees, in the first deed, for the consideration of 1001., to them in hand paid, conveyed to John Mayo, father of the appellant, “two lots in Manchester, and one in Richmond, and the whole land between the river and canal, including the river, with all privileges, &c. which ever was vested in said Byrd, or his trustees, except such land as is laid off into lots, and disposed of by lottery, as by reference to the plan of the town, recorded in Chesterfield, will appear.”

This deed was acknowledged in May, 1774, in the general Court, by Byrd, and two of the surviving trustees, Carter and Turnbull; the other two surviving trustees, though named in the body of the deed, not having signed it. In this deed, Byrd warrants against himself, his heirs, and assigns. Whether this money went to pay the debts still due to the surviving trustees, or that due Robinson’s administrators, does not appear; but considering how difficult it had been to raise money to pay off those debts, and the probable magnitude of them, from the specimen of that due to Robinson, it is not likely that they had been all paid off in the short space of four years; much less that Robinson’s also had been paid off. There is no reconveyance from Pendleton and Lyons; and, from any thing that appears, the legal title is now in their heirs.

‘The appellant (who claims under his father, the grantee, in the last-mentioned deed) instituted his ejectment against Murchie, the appellee, as surviving trustee of the town of Manchester, who (instead of defending the suit at law, either by showing the legal title in another, or by showing that this land, as a street or common, had passed as appurtenant to the town) filed his bill to stay proceedings in the ejectment; alleging that Byrd, and his trustees, had appointed agents to superintend the laying off and bounding the town; and that, in doing this, they set apart the “slip of land which lies between James River and the lots of said town, near what is now called Mayo’s Bridge, as a part of said town, to be annexed thereto, and held by the inhabitants, as a common forever.” He admits it is not described as a common in the plan of the town, and that there is no deed conveying it as such; but says, that neither are the streets described; in this, however, he is mistaken, as they are laid down in that plan, and the act of Assembly expressly recognises them, and enacts, that the town, as it is already laid out in lots and streets, containing 312 lots, as by said plan and survey may appear, is established a town ; had this land been so established, and annexed to the town as a common, the defence, at law, against any infringement of this right, would have been clear. The party, however, admitting that no legal title had passed, comes into a Court of equity for relief; and the defendant answers the bill, submitting also to the jurisdiction of that ¡Court. The bill further alleges, that - this slip of land is absolutely necessary to the said town in order to enable the inhabitants to approach the river with facility; and, without it, the communication between a great part of the town and the river, will toe entirely cut off; “although, in the printed scheme of the lottery, public landings were promised them.” This printed scheme has been exhibited, by consent, to this Court; which, after designating the improved lots, and other high prizes on the Manchester side, states 300 unimproved lots, each half an acre, estimated *as worth 251. each, to be laid off in a town convenient to the river, with public landings. The scheme, as to the Richmond side, designates, amongst other prizes, 10 islands in the river, on some of which are valuable fisheries; and these islands are laid down and numbered in the plan of the town ; some of them nearer the Manchester shore than the Richmond, and above what is now Mayo’s Bridge.

On these written and public documents, I incline to think the inhabitants of the town of Manchester have strong claims to the justice of this Court, which I am willing to extend to them, as far as I can, in this action ; and if, for defect of proper parties plaintiff, I could not, ultimately, decree in their favour, yet, as it is of great public •consequence that this controversy should be speedily decided, I should think myself justified in intimating my present impressions as to their rights, sending the cause 'back to have the bill amended, or such ■steps taken as finally to conclude the inhabitants by the decree to be made. Taking the case up, too, on these documents, would greatly relieve me as to the question whether there are proper parties defendants ; «or the deeds, under which the appellant claims, having reference to the lottery, the plan of the town, &c. will probably, make this scheme, as well as the plan, a muniment of title; against which he, or those under whom he claims, will not be intended to have purchased; and against which, Byrd, probably, will not be intended to have warranted. As to those lots which lie north of the canal, and adjoin this land, there being no street laid off in front of them, nor access to them, except through this land, the parties, not only from the scheme, which could not be intended to convey lots that should be inaccessible, but from the very nature of the conveyance itself, would be entitled to a street, or way, to their lots. So, also, as to the islands in the river, the very nature of the transaction implies that they shall be accessible from the main land. A street, therefore, from the main road, as well down as *up the river, so as conveniently to answer these purposes, would, I conceive, be demandable, and might be decreed by a Court of equity. So, also, as to public landings and ways to them; they being, not only generally promised, but the use of the public landing expressly reserved as to the forge prize, now the appellant’s property. Had these things been provided for by those persons entrusted to lay off the town, no injury would have arisen to any party; but the scheme would have been fully carried into effect’; and a Court of equity, considering that done which ought to have been done, might now designate and secure to the parties these rights, thus, as it at present appears to me, necessarily resulting from their respective deeds and title papers. The purchasers of tickets paid their money under the faith of the scheme advertised, and, as to every thing which can be fairly claimed under it, may be said to be purchasers for a valuable consideration ; as to every thing beyond this, the party relies on a parol contract, or, rather, declaration, made by the persons laying off the town, and, under this, he now claims the whole of this land as a common.

As to this point, I should feel little hesitation in dismissing the bill on the merits, so far as it claims any thing beyond what the parties may be entitled to under the written documents, were I satisfied that there were proper parties plaintiff before the court; and this, although I think there are not proper parties defendant, to this branch of the controversy, to enable me to decree against the appellant; for why keep the appellant in Court in order to give him the aid of, or the appellee a recourse against, other defendants, when no case is made out against him? but as the appellee does not sue in his own right, but in the right of others, if he does not legally represent those others, then a dismission of this bill would not bind the inhabitants of Manchester, whose rights ought not thus to be finally prejudged. Courts, however, will sometimes, in instances of this kind, intimate '’Their present impressions, in order to save litigation, if the real parties cannot make a different or better case. This parol promise, or declaration, was either merely voluntary, and without consideration, or it superadded to the scheme, as published, an additional inducement, and did induce purchasers to advance their money for tickets. In the former case, being merely voluntary, it would not be good against a subsequent purchaser for valuable consideration; in the second case, it would have vested an equitable right (if made by a person having a competent authority to bind Byrd and his trustees) in the party thus induced to adventure, to have the easement promised. Let me here remark, though, that it is neither alleged, nor proved, that any one was thus induced to advance his money, or that this additional inducement was made public, or known to any purchaser of a ticket; on the contrary, it appears that Mr. Lyle, a conspicuous inhabitant of Manchester, knew nothing of it until long after the lottery was drawn, nor does it appear that a single ticket was sold after this declaration. But take it, that an equitable right did vest in the holders of tickets who drew lots in Manchester, and has passed with the lots from purchaser to purchaser, and now exists in the holders of lots; has this right to an action, or suit in equity, been transferred to the appellee? The act of Assembly establishing the town, appointed nine trustees, any five of whom might act, with power to regulate buildings, &c. ; and, in case of vacancies, the surviving, or remaining trustees, were authorized to make new appointments.

The act of 1778 empowers the trustees of Manchester, and their successors, by that name, to sue and implead, either in the county or General Court, any person or persons who shall commit a trespass on the streets of said town, or lands which may have been appropriated for the use of the inhabitants thereof, &c. “Provided nothing herein contained, shall be construed to affect the legal rights of any person holding lands adjoining the *said town.” The vacancies have not been supplied, and there are no trustees, now, to supply them, the appellee alone surviving. The legal number competent to act, have ceased to exist, and the body politic, in fact, is dissolved, and must remain so until the legislature shall again bring it into existence. The appellee does not, therefore, legally represent the town, and, I apprehend, could not sue in those cases expressly mentioned in the statute; and, a fortiori, not in a case where I have doubts whether the whole could have sued. It does not follow that trespasses and nuisances in the streets cannot be redressed, or that the right in question, if it ever did exist, and vested in the trustees, is gone with the corporation ; those rights, and the proper remedies, still exist, unimpaired by the dissolution of that body, in' the people; in whom they originally vested, and to whom they belong; and had they, or some of them, in their own right, united with the appellee in this suit, there would have been no objection with me as to the want of proper parties plaintiff in the cause.

Whether there are proper parties to a suit, or not, will not depend on the will or election of the suitors, who frequently go to trial (as in this instance) without objection; as is evinced by all those cases where the Court themselves direct a cause to stand over for new parties tobe made; and they ought, generally, to be such, that the decree, if pronounced either way, will be obligatory on all parties interested, and not only in the controversy pending, but avoid the danger of contradictory decrees, thereafter, between any persons interested in the pending controversy. It will sometimes happen, though, that a bill will properly be dismissed, although the necessary defendants are not made, or are not before the Court, so as to justify a decree for relief; as in the case of an injunction against the assignee of a bond, on the ground of a latent equity between the assignor and obligor before assignment; if the assignee can show that the equity has. been waived or abandoned, as to him, he *will be dismissed ; because this decree can never conflict with one that may be pronounced between the original parties. But if relief is to be had against the assignee, then the assignor must be a. party, not only because be is the party con-usant of the transaction, on which the-equity is alleged to arise, and is, therefore, necessary to the defence, as well to-confess, or deny, as to avoid it, by after agreements, &c. but because he, if not before the Court, would not be bound by the decree, and, on a subsequent suit by the assignee, would have the same right of de-fence that he could have urged had he been made a party to the first suit; and so there might be contradictory decrees as to the same matter of controversy. Moreover, the plaintiff may have a decree himself against the assignor. But, I ' believe, there is. no case in which a Court has undertaken to decree against a defendant, merely because he has submitted to the jurisdiction of the Court, where, by the plaintiff’s own showing, it appears that he is neither the party interested, nor the legal' representative of that party; and, although I may be mistaken as to the fact, yet this appears tome to be the case in the present instance. As to the merits of this parol agreement, unless the parties interested can hereafter make out a better case than that which has. now been made for them, my impressions, are, that they cannot succeed under it. Take all the depositions in the cause, there is no proof, to me, of any authority in Carj' and others, to stipulate or promise any thing more than the scheme would give to-the parties; indeed, the bill itself does not allege any special authority to this effect, but merely a general authority to lay off and bound the town.

The sale to Lyle, it is true, was cancelled but Byrd, in the fall, or winter, after, expressed his surprise that there should be any doubt as to his right to sell this land ;. and he did sell a part of it to Trent, as early as 1769, whose right remains undisputed; and, it is strange, as this claim was thus disputed prior to the passage off the *act establishing the town, that this land was not designated, in that act, as a common, or otherwise belonging to the town; on the contrary, although the-parties knew of the sale to Trent, and of the deed to Mayo, in 1774, and of his exercising acts of ownership on the ground, and of the appellants doing the same, by abutting thereon his bridge, spoken of in the bill, and laid down in the plat, that they should have permitted these rights, depending on parol proof, to have slept until nearly all the parties to this alleged contract were dead. But the evidence, in this case, is much weakened, if we reject the depositions of the inhabitants of Manchester, the real- plaintiffs in this controversy, as it is said. Two of these depositions, to wit, of Weiseger and Quarles, are said to be taken by consent; but, I presume, that consent was merely intended to obviate objections as to want of commission, or notice, or something of that kind, and not to waive an objection to the competency of the witnesses, because they are interrogated as to their interest, which is also proved by another witness, and can surely be no waiver of objections to others. I think all the holders of lots in Manchester are incompetent witnesses; that their depositions are properly objected to, and ought not to have been admitted in this case. But, it appears to me, that the parties claim, in this Court, beyond what was either contemplated in their bill, or in the decree of the Court below. In order to extend the claim to the whole land between the river and the canal, we must construe that part of the bill, claiming the land adjoining the town lots, to mean the lots south of the canal, and so include the whole canal, at least, above the bridge, with the ten feet on each side; or, otherwise, we must restrict it to those lots which it really does adjoin, and thus leave the land above the bridge unclaimed. It is readily admitted, that there never could have been any foundation to claim the canal and twenty feet of land asa common, or street, ir being part of the large prize. But it is said, a bill may claim too much, and this is no objection to *decree what is right. Can we, however, suppose that the bill intended so extraordinary a claim? and if it was so understood in the Court below, why did that Court decree a conveyance of all the appellant’s right to the land so claimed, and thereby-take from him, not only the land between the canal and the river, but his mill canal, with twenty feet of land, and vest the whole in the appellee in fee, for the benefit of the town, not to be held by them as a common? This extent of claim was certainly not contemplated by the bill, either as to quantity of land, or estate.

Public landings were promised by the scheme. This is noticed in the bill. The highest possible public landing is some distance below the bridge, as is proved. There are lots near the bridge, joining this land, which (as before observed) have no street to them. The demands in the bill, then, (without putting so forced a construction upon it as that above supposed,) can be well defined, as extending to the land below the bridge. “They declared and set apart, the slip of land which lies between James River and the lots of the said town, near what is now called Mayo’s Bridge, as part of said town,” &c. These lots lie near Mayo’s Bridge; the ground, stated in the bill to have been sold to Byle, lies down here; the public landings are here, which are the great object of an approach to the river, and which cannot be approached through the land above the bridge, unless the canal, and twenty feet of ground, can be also thrown open as a common. If, therefore, I could decree in favour of the plaintiff, on this parol agreement, I could not extend his claim beyond what it appears to me to be clearly stated in his bill, although the testimony might carry me further; the party, if he wished to go further, would have to amend his bill. But this claim appears to be of a shifting nature in another respect. The bill claims a common. In argument, we are told that Mayo has the fee, and that a decree to convey all his interest, is right; in other words, that (instead of an incorporeal hereditament,' *a right of common, or way, which can only exist as growing out of that fee remaining in another) the plaintiff is to have the fee, for the use of the inhabitants of the town, as tenants in common ; or, if Murchie is not the plaintiff, but this suit is really by the inhabitants, (as was also contended for,) that, then, instead of a right of common, they are to have the fee. If they are to have the fee, or are to be cestui que trusts of the fee, as tenants in common, the property will no longer be attached to the lots, as a street, way, or common, forever to be kept as such, agreeably to the statement in the bill; but each tenant in common may dispose of his interest, and it may, finally, become vested in one man, who, having the fee, may sell or use it as he pleases. The decree, therefore, which directs Mayo to convey all his interest in the land, I think, is erroneous. A decree ought to be a regular consequence from the case stated and proved. If, as is contended, Byrd and his trustees agreed to vest in the inhabitants a right of common in the land, the fee remained in them, subject to this easement. This fee, with any right they held in the bed of the river, they could continue to hold, or sell and convey, and the Court, I apprehend, could not compel them, or their alienee, to convey this fee to the commoners. It is of no consequence in whom the fee is, if the incorporeal hereditament, growing out of it, is secured to the party claiming it, it may as well remain in Mayo as not; and the bill claiming no more, the decree ought not to have gone further.

But did I think there was a proper party plaintiff, and that a parol agreement, founded on valuable consideration, definite as to its object, and the quantity of estate to be conveyed, was proved, and that this suit, to set it up, had been prosecuted within reasonable time, still I should not be able to decree against the defendant in this case; because, I think, necessary defendants are wanting, in order to authorize such decree. There is no proof that the original trustees, who held the fee, accompanied, *with a beneficial interest, were parties to this parol agreement, or that they were ever informed of it during their lives. They conveyed the fee to Pendleton and Lyons, (in whom it is not alleged there was notice of this claim,) first, for the discharge of their own debts; and, second, for the payment of a large debt due the intestate of those grantees; and in them, or their heirs, the fee, probably, yet remains; although they, or some of them, may have received the purchase money from the ancestor of the appellant, in whom, also, no notice. is proved; for, though he was bound to take notice of the scheme, and other written documents, yet, under them alone, notice of the claim to the present extent cannot be inferred, as this is a claim beyond the written testimony; and, even if he knew of the present claim, he would be protected against it by the ignorance of those parties, and so they are necessary parties, not only as probably holding the fee, but for the purposes of a just defence, But, above all, Byrd, who warrants against his assigns, and under whom the appellee claims by virtue of this prior contract, being the alleged party to that contract, can alone defend against it — can alone confess, deny, or avoid it; and, not only for that purpose, but being responsible even under his warranty, would not be bound by this decree, but might show, in a suit brought against him by Mayo, a complete defence as to the merits of this case, so as to produce a contradictory decree; and, therefore, on every principle, X think, his representatives should be parties, This appears to me to be according to the course of the Court. In Hoover v. Donnally and others, 3 H. & M. 316, the plaintiff, as as-signee of a purchaser from Donnally, files his bill against him and Grattan, a subsequent purchaser, to have a conveyance agreeably to the first sale. Donnally confesses the first sale, but says, the purchaser being unable to pay, gave up the contract, &c. and had this been proved, it surely would have been a good defence. This case was reversed in part, because the first purchaser was not a defendant, *to confess or deny the sale of his right to the plaintiff; so, in Argenbright v. Campbell, 3 H. & M. 144, Campbell, the elder, under whom both parties claimed, was made a defendant. In the case of Lewis v. Madison’s heirs, 1 Munf. 303, Rowland Madison’s heirs were not parties. But as the Court were clearly of opinion, that the heirs of the first purchaser had no equity against Lewis, the second purchaser, and that the bill, as to him, ought to have been dismissed; this question was not decided, although two Judges give it as their then impressions, that a decree could not have been pronounced against Lewis, without those parties. This suit is an injunction on the ground of an existing prior equity in the plaintiff, arising under a contract, or agreement, of the parties under whom the appellant claims; those persons, or their representatives, appear to me to be necessary parties.

On the whole, I am, at present, of opinion, that the inhabitants of Manchester have, under their deeds and written documents, certain rights, which a Court of equity may secure to them; but that they have no claim, under the parol agreement, which that Court can enforce. With this intimation of opinion, given for the sake of speedy justice, but without intending it to be obligatory, as to either point, on the parties, on either side, who, when properly convented, will be at liberty to make, or defend their case, as shall be advised, I am for reversing the decree, and sending the cause back to the Chancery Court, with liberty to the plaintiff (who, as surviving trustee, would, perhaps, not improperly unite, as plaintiff, with the inhabitants of Manchester, or some of them, and, for the purposes of speedy justice, I am, in this case, willing, so far to recognise him as such, as not to dismiss the bill altogether) to amend the bill and make new parties, that the cause may be proceeded in to a final d6Cf66>

*JUDGE ROANE. This is a bill brought by the appellee, as surviving trustee of the town of Manchester, on behalf, ana for the benefit, of the said town and its inhabitants, against the appellant and William Nelson, the agent of Charles Carter, who was the surviving trustee of William Byrd. It prays, on the ground of an equitable title, alleged to exist in his and their favour, in and to a slip of land, the subject of controversy, and for which they have never obtained a deed, or other legal title; and on the further ground of the appellant’s having brought an ejectment against the appellee as surviving trustee aforesaid, for the said land, to which he claims the legal title by virtue of a deed from the said William Byrd, and two of his trustees, (Charles Carter, the surviving trustee, not having joined therein;) that the said appellant may be enjoined from proceeding in the said ejectment; that he and the said Charles Carter, by his agent aforesaid, may be decreed to convey the said land to the appellee, as surviving trustee aforesaid; that the said appellee, for and on behalf of the said town and its inhabitants, may be decreed to be quieted in the possession thereof; and for further relief.

On a hearing of the cause, by consent of parties, as to the appellant Mayo, the Court of Chancery decreed, that he should release all his right, title, and interest, in and to the land in the bill mentioned, to the appellee, and his successors, trustees of the town of Manchester for the use of the said town; that the said town be quieted in the possession thereof, and that the appellant, Mayo, be perpetually enjoined from commencing or prosecuting any action at common law, for recovering the same.

With respect to the said Charles Carter, or his agent aforesaid, the appellant, Mayo, having procured the legal title as to him also, prior to the hearing of the cause, by tne decree in the proceedings mentioned, no decree was made, or was deemed necessary to be made, in this cause, as to that party.

*From this decree of the Court of Chancery Mayo appealed to this Court.

Before I go into the merits of the case I will briefly notice such preliminary objections, made or occurring- in the cause, as appear to me to deserve an answer.

In the first place, it has been objected, that the demand in the bill does not extend to all the slips of land lying between the canal and the river, but only to so much thereof as lies immediately between the lots laid off on the north side of the canal and the river. Without adverting, at present, to the uniform tenor of the decisions of this court, which, in favour of substance, have exploded a rigid and technical construction of bills and proceedings in equity, I may here remark, that this tract is demanded as a slip of land, and not as a part of that slip; that, in fact, the whole of that slip does lie between the lots aforesaid and the river, though a part of it, indeed, lies in a diagonal direction; and that while the continuity of the slip is an overruling obstacle to the construction now contended for, it would be difficult for the appellant to assign any precise limit by which the land, admitted by him to be demanded, would be regularly bounded. It is not shown that the present road to Mayo’s bridge in fact existed at the commencement of the present controversy: and both that road, and the road to the former ferry, (the only other plausible boundary which can be resorted to under this hypothesis,) would leave so small a part of the slip, as the object contended for by this bill, as neither to answer the avowed object for which the appropriation for the use of the town was made, nor to be worth the trouble and expense of the controversy. Either of these boundaries would throw the land, admitted to have been appropriated for the use of the town, to the extreme corner thereof, in exclusion of other land lying breastwise with the bulk of the said town, and emphatically convenient thereto; and in point of quantity would whittle it down to a spot, of no account whatever as to the purpose intended.

*It is next objected that three of the most important witnesses, on behalf of the appellee, are incompetent, and that their testimony ought to be excluded, by reason of their being inhabitants of, arid landholders in, the town of Manchester, and therefore interested in the question in controversy. While the legality of this objection is not denied, as an abstract proposition, I am strongly inclined to think that the appellant has precluded himself from making the objection, as to two of them (Quarles and Weiseger) in the case before us. The depositions of those witnesses, together with those of Goode and Taiman were taken on the 14th September, 1805, in the city of Richmond. They were taken by two magistrates, and the same two. While these depositions were all taken at the same time, by a competent number of justices, and by the same justices, it is not shown or alleged that there was any want of a commission, or of due notice to the adverse party, of the time and place of taking them: on the contrary, from the circumstance of its being stated that Goode’s deposition was taken “agreeably to notice,” and yet, also, that it was sworn to in “the presence and by consent of the parties.” that consent cannot, as to this deposition, be referred to the want of notice: nor, consequently, is it reasonable to refer it to the want of notice, in relation to the two depositions in question ; especially, as there is another ground on which to apply and account for it, viz. the ground of interest. When, therefore, in these two depositions it is expressly stated in the introductory part thereof, that they were taken “by consent of parties,” and, again, when (after they had been interrogated as to their interest) the magistrates also certify that these depositions were sworn to “by consent of parties,” and no other defect is shown or presumed to exist, to be cured by this consent of parties, must it not be irresistibly inferred to relate to the objection of interest, and to waive it? to waive it, at least, as to the reception of the testimony, however the circumstances disclosed on the subject might still weigh *as to their credibility? This construction could not admit of a possible doubt, were not this consent also extended to the depositions of Goode and Taiman, who are not also shown to be interested: — but as to them, this phrase may have been kept up through inattention; or there may also have been some supposed objections existing against them, also, at the time which (like the interest of the other witnesses) this consent was deemed necessary to cure, and which, on account of the agreement of the parties to waive the same, have not been brought forward for the consideration of the Court. Under all these circumstances, to object to the reception of these depositions altogether, (and that in the appellate Court,) would seem to be a departure from the principles of good faith and fair ealing, (as, but for this stratagem, the same facts might have been proved by other, and unexceptionable witnesses,) and is an objection, of which, consequently, the appellant ought not to be permitted to avail himself. I shall, therefore, consider the depositions of the said Quarles and Weiseger, as legal and competent evidence in this cause; and as strengthening and fortifying that construction, which irresistibly result, from the other testimony existing in the cause.

I come now to consider the merits of this case; and I am clearly of opinion that the appellees have an equitable title to the premises in question, by having purchased and occupied the same prior to the purchase by the appellant’s ancestor; and that that ancestor had notice thereof at the time of his purchase, both by reason of the general reputation which existed as to this purchase and possession, and of the inferences, to that effect, which he must unavoidably have drawn, from the situation and position of the land itself, taken in connexion with the plan of the town, the scheme thereof published by the trustees, and the various acts of assembly passed upon the subject: the appellant had also express notice of the title aforesaid, (prior to the consummation of his title by *the decree in the proceedings mentioned, ) by the very exhibition of the bill before us.

With respect to the purchase of the premises from the trustees, (throwing the testimony of Lyle out of the question, as being an inhabitant of Manchester, and whose deposition is not brought into the cause by consent, as are those of Quarles and Weiseger, and who proves unequivocally the authority of Cary,) it is proved by Col. Goode that Messrs. Patterson & Watkins were authorized by Byrd, and his trustees, on account of their dispersed situation, to lay off the town, and to advise with Colonel Cary, should any difficulties arise, who (Cary) was “fully authorized” to act upon the subject; and that the slip of land now in question was set apart for a street or common for the town, by his direction, by the parties aforesaid. It is again emphatically stated by said Goode, that he knew “that the said Cary was fully authorized by Byrd, and his trustees,” to act for them in laying off the town aforesaid; the force of which affirmation is not at all impaired by that part of the testimony of said Goode, given on his cross-examination, which refers to two letters therein specified, as conferring the authority; for the witness, also, says, that these letters, “with other papers, then produced,” were- found to confer an ample authority. This sale, and the agency of Cary, is also recognised and admitted by Byrd, who proved, by Patterson, to have revoked a sale of a lot .to Lyle, (a part of the premises in question,) on the ground of its being previously disposed of, on being informed thereof, and remonstrated with on the subject. The appropriation of this slip to the use of the town, is also proved by Moore, a chain carrier, at the time of laying off the town; and is corroborated by the possession thereof, proved to have existed in favour of the town, from q date coeval with the transaction itself; the only exceptions to which are the equivocal acts of possession proved, on the part of Mayo, by the witness, Taiman, and which were not of a character to require the corrective interference of the ^trustees of the town. With respect to that possession, while it is proved to have existed in favour of the town, prior to the date of Mayo’s deed, it is objected, on his part, that there were no such decisive marks of the actual occupancy of the town as were competent to give him notice thereof. In answer to this objection it may be replied, 1st. That their possession was of a character equal to that of his possession; for while a solitary act of building a vessel thereupon, is proved, on his part, by a single witness, who, also, declares, in a sweeping clause, that similar acts of ownership were always (not, I presume, before the date of his deed) exercised thereupon by the said Mayo, it is also inferable that the inhabitants of the town (who, it is proved, “occupied” the same) manifested that occupancy by acts of as high a dignity, for example, by grazing their cattle thereupon, and taking stone and turf from the premises: and, 2d. It may be replied, that these were the only marks of possession that could be exhib-. ited, in relation to a street or common : it would not have been lawful to have erected houses upon the same, or the like.

But that general reputation, which existed as to all others, in relation to a transaction so public and notorious as the laying off a town, and the enjoyment of its commons by the inhabitants, Mr. Mayo was also bound to notice. While that reputation is proved to have been general, and known to several witnesses, it is not shown that a single person was ignorant thereof; for, although it is shown that Lyle purchased a part of the premises early in the next year, it is not further shown that he purchased it under an ignorance of the rights of the town. He might, for any thing appearing in this record, have purchased, as Trent did, with a full knowledge of this claim, and running the risk of the title: he might have ventured to have even bought a bad title, as Mayo himself is proved by Goode to have done, in the general estimation of the people. With respect to Byrd himself, it by no means follows that he sold Lyle’s lot under an ^ignorance of the title of the town ; for he himself sold the same land, five years afterwards, to Mayo, after he had been warned in the transaction with Lyle, that the land sold was the land of the inhabitants of Manchester.

I may therefore say, with perfect confidence, that here was a general reputation, without a single exception to the contrary, of the right and the possession of the town, which could have arisen only from the public and notorious acts before mentioned, and which, coming to the knowledge of everybody else, must certainly have been known to the elder Mr. Mayo at the time of his purchase. That inference is carried beyond the possibility of a doubt, by the internal evidence inherent in, and resulting from, the nature of the property in question, considered in relation to its actual situation, and to the public terms under which the town aforesaid was offered to the consideration of the adventurers.

It was decided in the case of Wilcox v. Calloway, that the purchaser of a legal title is to be affected by any latent equity, of which he has, either actual notice, or which appears in some deed, or, (I will add) document, necessary to the deduction of the title, so as to amount to constructive notice. Under this position, abundantly supported by all the authorities, the plan of the town of Manchester was brought before the eyes of Mayo; for it is particularly referred to in his deed; he having purchased all the land therein described, with the exception of “such land as is laid off into lots and disposed of by lottery.” His deed having also referred to the lottery, under which the town was disposed of, the public scheme of that lottery is also a document of which he was bound to take notice. To this I will add, as an undeniable position, that he was bound to notice the act of the legislature which established the town aforesaid. He is bound by such act, if not on the ground that acts of this character are bound up with the public acts of every session, and promulgated by the authority of the legislature, at least on the ground that his deed refers to the town of ^Manchester, as ascertaining the position and boundaries of the lots of land thereby conveyed, the extent of which town could only be known by recurring to the act establishing it, and the plan of the town laid off conformably thereto. I will go further, and add, that every purchaser is bound to take notice of a right or claim inherently and necessarily affecting the subject purchased. For example, if I purchase a tract of land surrounding another tract, contained in the centre thereof, I am bound to know that the owner of the land comprehended has a right of way through the land I have purchased : and if I purchase a tract of land (as in the case before us) abutted by a square, or number of lots in a town, having no other street or way of communication with the other parts of the town or the adjacent country, I am bound to know that the inhabitants of such lots have a right to a street (not a mere right of way) over the land I have so purchased. These are things of which a purchaser must take notice at his peril, unless we are at liberty to consider him ignorant of the plainest principles of right and justice.

By these several principles and positions, let the purchase of the present appellant be tested.

In the case before us, Mr. Mayo, with the very plan of the town before his eyes, which his deed refers to, and calls for, as a part of itself, purchased a slip of land extending up to the very lines of the range of lots laid off below the canal, the owners of which have no possible way" to pass, in the direction of the other part of the town, the public ferry, and the river, but through the slip aforesaid; that slip of land being, on an inspection of the map, in several places, perhaps, not wider than the other streets of the town, and In none materially wider. Is it possible that he could have been ignorant (independently of all other information) of the right of the people to a street on the premises, and which, in one point at least, just between the aforesaid range of lots and the ferry, is so narrow, as, by extending to the river, would, perhaps, '“'divide the slip of land into two parts? Again, with the same plan before his eyes, which laid off the town down to the mill canal, and extending up the river to the mouth thereof, and also having before him the scheme of the lottery, which promised to the adventurers that the lots should be laid off convenient to the river, and with public landing's, could Mr. Mayo possibly have supposed, that this bit of land was withheld from the town, which intercepted a communication with the river, at all points, but one, (the public ferry,) and which rendered that part of the scheme which promised the public landings, a mere delusion? If it be said that public landings on this part of the river were unimportant, as the river at that place was not then navigable, the answers are twofold : 1st. That the pretensions of the appellant equally occlude such landings, at any other place convenient to the town, or, more particularly, in the space comprehended between the head and the mouth of the canal, although the navigation, below the ferry, was not interrupted by rocks; and, 2dly. That, although such was the then state of the navigation of the river, above the ferry, the same scheme held up the most flattering expectations of removing the obstructions through the falls within a short time, and extending the navigation of the river to an immense distance into the interior of the country, in which event public landings, even at that place, would have been all important.

Again, with the same documents before his eyes, as also the act of assembly of 1769, establishing the town of Manchester, which act established the said town, “in the manner it is already laid off into lots and streets, agreeably to a survey thereof by B. Watkins,” which is particularly referred to by the act, ought not the said Mayo to have examined that survey? and had he done so, I expect, from the testimony exhibited in this cause, (for the survey itself is not before us,) it would have thereby appeared, that the land in question was set apart for the use of the town. These are damning documents, “against which Mr. Mayo, at the time of his purchase, could not possibly have winked so hard as not to see that the right in question, or some right in the premises, existed in favour of the inhabitants of Manchester, and in consideration of which the adventurers and purchasers of lots in the said town paid a higher price for their property. It was the knowledge of this title existing in the town, also, which induced Mayo to offer, and Byrd to accept, for this slip of land, a price, perhaps, not one twentieth of its value, had the title been good; which induced Mayo, for this trifling consideration, to purchase “a bad title,” hoping that time and chance might render it good, and to accept a deed not containing a warranty therefor. The purchase was, therefore, with full notice of the title of the town, and mala fide; which is entirely strengthened by the length of time during which the appellant forebore to assert his claim; during which time a multitude of witnesses may have died, and documents been lost, all tending to corroborate the testimony, even now sufficiently strong in favour of the appellee’s title. I will ask, more particularly, how it has come to pass, that when the act of 1778, to enlarge the powers of the trustees of the town of Manchester, had made it, the duty of the trustees to bring suits against all such as were committing trespasses on the “streets of said town, or lands which may •have been appropriated to the use of the inhabitants thereof,” (a . description emphatically applicable to the premises in question,) and had directed *the money, to be recovered in such suits, to be applied in “repairing the streets, or erecting wharves and improving the public landings within the same,” why did not the ancestor of the appellant take the alarm for his legal title, and contest, by a judicial investigation, this legislative judgment, (if I may so express myself,) which had decided the right to the premises to be in the town, by legalizing the erection of wharves, and the improyement of public landings in and upon the same? as, certainly,'no other part of the contiguous land would have admitted of wharves or landings. Where, then, was his redoubtable, though solitary witness, Taiman, who proves acts of possession, of the premises, six years afterwards, as equivocal, and as little satisfactory, as is the title which such acts of occupancy were intended to bolster up or consummate? In all probability, Taiman, and such witnesses as he, would have been, at that time, frowned into annihilation by a horde of respectable witnesses, now consigned to the grave by the lapse of thirty or forty years.

But if Mr. Mayo could be supposed not to have had notice of the appéllee’s claim, at the time of his purchase, why did he not stop his hand from proceeding and perfecting his deed, after the said claim was made known to him by means of the law aforesaid, founded, no doubt, upon the petition of the people of Manchester? why did he even proceed to perfect his said deed by a suit in Chancery, against the surviving trustee of Byrd, after he had notice of the said claim by the institution of this very suit? In the aforesaid case of Wilcox v. Calloway, it is held, that a purchaser, in a case like the present, must be a complete purchaser, by having a conveyance and having paid the purchase money, before notice; for if he have notice before either of these acts be perfected, he ought to stop until the equity be inquired into, or he will be bound by it. The same doctrine is held in Mitford, 216, and many other authorities; and Mitford adds, that, in a plea of this kind, if the deed purports an immediate transfer, *-(as in the case before us,) it must also aver that the seller was in possession of the premises; because (I presume) the want of possession is, prima facie, an indicium of the want of title, and calculated, at least, to put the purchaser upon an inquiry. This possession, as existing at the time of his purchase, in Byrd, or his trustees, the appellant has not thought proper to aver, and, if averred, would have been disproved by the whole current of the testimony. I will here add, that not only did the appellant himself consider his deed incomplete up to, and after, the institution of the present suit, (as is evinced by his proceeding in equity to perfect it,) but that he was also correct herein; for we are told in 1 Harr. 256, (old edition,) that trustees have all equal powers, and cannot-act separately, but must all join, both in conveyances and receipts.

I have thus examined this case by circumstances, and, criteria dehors, the deed under which the appellant claims. The conclusion resulting therefrom is- entirely confirmed by the internal evidence contained in the deed itself; for while the grantor, Byrd, had thus a second time sold this land, which, in equity, belonged to the appellees, and sold it (in the second instance, at least) with a full knowledge of that fact, he only warrants the title against himself, his heirs and assigns. A warranty, so .contrary to the usual course which prevails, in relation to bona fide purchasers for full and valuable consideration, in itself creates a suspicion. These •clausulas inconsuetas, taken in relation to a bona fide purchase for full value, and without notice, not only create a violent suspicion that such is not, in fact, the character of the purchase before us, but are entirely accounted for by the very inadequate price given for the land in question, to be presently particularly noticed. As to the two trustees (out of four) who joined Byrd in this deed, and who are proved to have been in the habit of adding their names to deeds executed by him, without any further inquiry; while this fact would go far, in a Court of equity, to affect any *deeds in which they have so joined, and especially such as are also impeachable on other grounds, it is to be observed, that they have not joined in the warranty contained in this deed, even in relation to themselves, although they are included in the conveying part. Such a deed, accepted by a man who could not be ignorant that the title to the land in question had been originally conveyed to them by Byrd, and who, except as to the claim of the appellees, (I here keep the deed to Robinson’s administrators out of question,) were the true owners, carries with it internal evidence of the weakness of a title, which, at that time, would not stand the test of scrutiny, however available it might afterwards become, against an agreement existing only by parol, through the lapse of time, and the death of witnesses. That title is also impugned by the circumstance disclosed by the deed itself, that not more than, perhaps, one twentieth part of the value of the land, at the time of the purchase, was given for it. I infer this, because, although the exact quantity of the land in controversy has not been ascertained, yet, as fourteen lots (exclusively of streets) were substituted for it, on the back of the town, and each of these lots had sold for a sum equal to that given for this whole slip of land, (for three fourths of the hundred pounds, the consideration of the deed, went to pay for the three lots thereby also conveyed,) it follows, that, estimating this tract at only ten acres, and that each half acre here is only worth as much as the half acre lots in the interior of the town, (which is certainly far below the mark, in relation to these water lots,) not more than one twentieth of the value of this land, at the outside, was given for it. While this great inadequacy of price, singly and abstractedly taken, might be insufficient to vacate the contract altogether, it goes far, indeed, to show, that the extent of that contract is not such as the appellant now contends for. That inadequacy proves the full knowledge of Mayo and of Byrd, that the latter did not sell, nor the former acquire, the indefeasible right to the ^premises in question; but that, on the contrary, Byrd’s title only (such as it was) was conveyed for this paltry consideration. It proves, in the language of Colonel Goode, as applied to the general understanding of the neighbourhood, that Mayo only purchased lla bad title.” To have made out his case, the appellant should have proved Colonel Byrd to have been so great a fool, as to have sold twenty of his water lots for the price given for one of the frontier lots of the town; for, perhaps, less than a fortieth part of their real value. But this gentleman was no fool, although (but for his known character for probity and hon-our) he might deserve a harsher epithet for selling a lawsuit to Mr. Mayo, under the name of land, after he was informed, b3' the transaction with Byle, that he had no land at the place in question.

Such is the inference irresistibly resulting from these circumstances, considering the value of the land in controversy as only equal to that of the adjacent land. But if we could, for a moment, embark into the regions of fiction, with one of the appellant’s counsel, and consider this land as worth the enormous sum of five hundred thousand dollars, such a palpable and glaring inadequacy of price would be presented to the view of the Court, (even making all due allowances for its intermediate rise in value,) that all men must at once exclaim, ‘‘this thing is not right;” all men must admit that this paltry sum of 251. was only given for the mere right to sue for this immensely valuable property; trusting that time and chance might perfect the title.

As to the merits of this case, therefore, I cannot have a scintilla of doubt, that the appellees are entitled to recover.

Notwithstanding, however, the strength of these merits in favour of the appellees; notwithstanding that these merits are susceptible of various additional views, all tending to show the utter iniquity of the appellant’s pretensions, we are now told, that, after the appellees have run this long race, at the instance of the appellant, *and in the very character with which he was pleased to clothe them, another chance must be given the appellant, by sending the cause back for want of parties. This is an objection which, as to the counsel for the appellant, has been, probably, produced by the queries propounded from the bench. In the former argument of this case, while it was asserted by the appellant’s counsel, on the one hand, that a decision upon the merits was desirable, it was not pretended, on the other, that there were not proper parties plaintiff in the cause; and it was expressly admitted, that if (as the fact is) the legal title were in the appellant, Mayo, the objection would not lie for want of parties defendant. While this Court is certainly not to be bound, by the omission of counsel, to state the real grounds on which any cause ought to be decided, it is not very likely that, in a case in which equal talents and industry, have been displayed by the able counsel who argued it, points, so substantially material to their success, would have been omitted. The omission of these counsel, therefore, to take this objection, spontaneously, and in the first instance, is a circumstance which goes to corroborate my opinion upon the question.

As to this objection of the want of parties, it amounts to an objection to the Court’s decreeing, at all, in that stage of the cause, on account of the absence of parties necessary to enable the Court to proceed, according to the principles by which it is governed. If the party defendant stands merely neutral, the Court is bound to see that all necessary parties are brought before it; but if he prays the Court to decree in that stage, or consents that it should so decree, it amounts to a waiver of the objection. In the case before us, it is true, the appellant neither prayed the Court to decree, nor consented, totidem verbis, that it should decree; but he consented that the cause should be heard as to himself, which amounts to the same thing. The Courts of justice are not to be so trifled with, as to be invited to hear causes without being suffered to decide them. A consent, therefore, “’that the Court should hear a cause, amounts to a consent that it should decree therein, and a consent that the Court should decree in the case, wholly abandons the objection arising from the want of parties. This objection was not only, in fact, waived, but also might have been well waived by the appellant, in the case before us; for he had the whole title in himself, and was competent to a complete defence; it was not until1 that title was found to be against him, on the merits, that this objection was started, or thought of.

On this broad principle, then, I am clearly of opinion, that the objection does, not lie in the case before us. I am willing, however, to consider that objection more particularly, and under the idea that it had not been thus waived and abandoned on the part of the appellant.

It is now objected, in the first place, that there are not the proper parties plaintiff in the cause. That party, it is true, is only John Murchie; but it is expressly shown that he does not sue merely for himself, and in his private character. This is shown by its being stated in the bill, and admitted in the answer, and other proceedings, that he sues as surviving trustee, and for the benefit of the town of Manchester. In the case of his wishing to appropriate the proceeds of the recovery to his own use, therefore, he would be forever estopped from such pretension, as well by such proceedings, as by the decree in this cause, which, pursuing the character of the claim .set out in the bill, decrees (beneficially, at least) only in favour of the town of Manchester. Nor does it follow that, in the case of the appellant’s success in this instance, the inhabitants of the town could disclaim. Murchie’s agency, and harass him with a new suit hereafter. If, however, it were even so, the appellant possessed full power to subject himself to that inconvenience, by the shape and character of his proceedings. In the event of a future suit brought by them, many circumstances might be urged by Mayo, tending to show that Murchie . was their authorized agent, (admitting that, on general *principles, he was incompetent,) and that, with a full knowledge of all circumstances, they acquiesced in his assuming that character, and carrying on the suit. While it is entirely admitted, that all persons concerned in the demand, made by a bill in equity, ought to be parties plaintiff, with the exception of cases in which they are very numerous, and the like; there is no rule or principle which prohibits the defendant, where such . parties are really represented, from dispensing with the strictness of form, or with objections of a merely legal character, in deducing the character of the representative. There may be a difference between the total absence of parties, for want of whom the Court of equity is disabled from its favour-ite object of doing complete justice in 'one suit, and cases in which there is a mere defect in the power of the agent, to which the adverse party, desirous, perhaps, of a speedy decision, is content to abandon his objection. This distinction derives abundant support from those principles of the Courts of equity', by which some, of many numerous parties, are permitted to sue; those under the influence of which that Court even supplies and appoints trustees, or guardians, for the purpose of suing, and the like; and whiph disregard form, for the purpose of dispensing substantial equity to those beneficially interested. However the case might be, in the present instance, had the appellant stood merely still, or objected in an earlier stage of the cause, he has es-topped himself by the course taken by him in his proceeding. He has worked such estoppel, by bringing an ejectment against Murchie, as surviving trustee of the town of Manchester, of which ejectment, the present suit may be considered as merely a continuation in another forum ; by recog-nising him as such trustee, not’only by that suit, but by his answer in the present; and by consenting that the cause should be then “heard,” (as is before said,) as to Mayo, which term, “heard,” was undoubtedly intended to mean a trial upon the merits, as contradistinguished from the dilatory exception for want of parties. I consider *all these acts, and those, too, in .relation to parties who are in fact, though, possibly, irregularly, represented, as amounting to a waiver of the objection on the part of the appellant. But for such waiver, the appellee (if his authority were otherwise defective) might have set the objection at defiance, by showing a private act of Assembly, a written power by the inhabitants of Manchester, or the like, giving him full and complete authority. Under circumstances like the present, the Court will presume any and every thing tending to show that the waiver was not made without due consideration, and that, if it had not been made, every objection to the appellee’s competency could, in the Court below, have been easily obviated. This view of the subject precludes the necessity of considering how far the appellee would have been authorized to maintain the suit, on general principles, or by virtue of the acts of 1769 and 1779, or either of them. It goes on the principle, that it is unfair and unjust for a party to decoy another, by false signals, into the appellate Court, where the objection cannot be obviated; that it is competent for a party to release a right intended for his benefit; that it is not competent to a court to decree against the consent and admissions of both parties; and that, in this case, no inroad is made upon the jurisdiction of the Court of equity, as all parties necessary to a complete decree, are, in fact, (though, possibly, irregularly so,] before the Court.

It is, in the next place, contended, that there are not the proper parties defendant in this case: and this objection is branched out to extend to Byrd’s trustees, or their representatives, and to Lyons and Pendle-ton, or those representing them under the deed of 1770. As to Byrd’s heirs, against whom he warrants by the deed to Mayo, the objection is not, I believe, extended to them: if those heirs should be construed to be bound, under the warranty in the deed, by an alienation made by Byrd’s authority many years before, yet, Byrd, having before parted with the legal title to his trustees, and, as it is *contended, to Pendleton and Lyons, they are not necessary parties to this suit, unless the Court is prepared to say that you are to hunt through all the intermediate alienors up to the original owner of the land, and that he, or his heirs, are indispensable parties. With respect to the representatives of those from whom the appellant purchased the mill and canal, they need not be before the Court, under the actual opinion of the Court, as I understand it, which only gives to the appellees the land up to the canal aforesaid. There will be nothing in this decree by which those parties can be possibly affected.

As to the necessity of making Byrd’s trustees parties, the appellee certainly wants no decree against them: they have parted with the legal title to the appellant: even Carter, who, at the time of the institution of this suit, had the remnant of that title abiding In him, was deprived of the same, by the decree in the proceedings mentioned, which was prior in date to the decree now appealed from. Byrd’s deed to Mayo, which, at law, was objectionable for want of Carter’s'signature, has been freed from that objection by the decree aforesaid. The appellant was, thereafter, possessed of the complete legal title, and the appellees are in quest of it. On general principles, it would seem, that those who have, and those who want, the entire subject of ■controversy, would be proper and sufficient parties. It is enough that all those should be parties defendant to the suit, who possess all the rights in controversy in that suit, and therefore can enable the Court of ■equity to make a complete decree upon the subject. It is not necessary that all those ■should be also parties, who will be necessary parties in other suits, to which the decision in the suit in question may give rise, by reason of a warranty, or otherwise. That would lead to a never-ending line of parties, would carry you up through all the mesne alienations to the original owner, and impose upon the plaintiff, without necessity, the burthen of comprehending parties who are to him unknown, and perfect strangers. It is a great ^matter gained to the jurisdiction of Courts of equity, to settle the controversy, and avoid circuity, as to all interested, in the very question in contest in the suit; that is, (as applied to this case,) as to all possessing or claiming the legal title. There are sufficient difficulties and delays already existing under this rule, and arising from the number of parties ■indispensably necessary. There is no need to go further to outgo the demand in the bill, and essay the vain attempt to settle by one decision, all other suits, and every consequential claim or injury, which may grow out of the decision of the point in issue. It is a consequence of these principles, that no person need be a party to a suit in equity, against whom if brought to a hearing, there can, or need be, no decree; although he be interested. On this principle, it is held that a residuary legatee need not be a party; nor need a bankrupt in a suit against his representatives; though they are both much interested in reducing the amount of the sum demanded. Again, it is said not to be necessary to make the assignor of a bond a party, in a suit against the assignee impeaching the same, although he is interested in the consequence of the suit, by virtue of his assignment. All these parties are as evidently interested, as the trustees in this case would be if they had warranted the appellant’s legal title. In that case they would be evidently interested in defeating the plaintiff in this suit; for they would thereby defeat the appellant’s remedy over, against themselves, for retribution. In principle, there is no difference between the cases: between the case of the residuary legatees, bankrupt, and assignor aforesaid, and that of vendors warranting the legal title. The contingent liability of the party warranting, to be affected in another suit, is therefore no ground on which he should be held a necessary party in the suit in question. This suit, as to its whole extent, may be decided without entering at all into the question of that liability; that question is to be discussed in another suit, in which the person warranting is a party, and in which it is to be “'decided, whether in fact he warranted, or is liable to retribution, or not. The general principle, dispensing with such parties in the case of an actual warranty, will, however, be much strengthened, if, in the suit before us, it appears that no such warranty was made; and that, in fact, no liability to make retribution exists in favour of the appellant. That circumstance cuts up this pretension by the roots, if, otherwise, it applied to the case before us. If this contingent interest does not entitle the person warranting to become a party for his own sake, far less will it for the sake of his alienee, the defendant, who stands in the preferable situation of having his immediate recourse over, against him, in case of eviction. Although, in the case of a warranty, the partj' warranting is eventually interested, no decree can, in a suit like the present, be made against him. Such decree cannot be made in favour of the plaintiff, because he goes for the land; for the legal title, which the person warranting has not, but his alienee has; and he (the plaintiff) has no right to the money; for which only, in case of eviction, the war-rantor is liable. Nor can a decree be made against him in favour of the defendant; 1st. Because no decree can be made in favour of one defendant against another; and, 2dly. Because, then, there would be two decrees in the same cause; one in favour of the plaintiff, for the land, and another in favour of the defendant, for the money; whereas, the most that Courts of Equity have aspired to, was, to settle the whole claim demanded in the bill by one decree. If, then, there can be no decree, against the party warranting, either for the plaintiff or defendant, he need not be before the Court, on the only ground on which such parties are held necessary, namely, to avoid circuity of action. In that case, this circuity (though for another and distinct cause of action) must be encountered; for you can only come at him by another and a separate suit.

There is another principle on which, in favour of a party defendant, persons are sometimes held to be necessary ^parties, who would not otherwise be so considered; and that is the principle of affording aid to the title set up by such defendant. Thus it was held in the case of Lowther v. Carlton, that, in a suit against a purchaser with notice, from a purchaser without notice, the former is entitled to have the aid of the latter, to enable him to defend his title. In the case before us, however, (admitting that the trustees had warranted the title of the appellant,) they have no such shield, which would enure to cover him from the present claim. They had before conveyed the equitable title to the appellees, (which drew the legal title with it, except as against a purchaser without notice,) and had also parted with the legal title itself, before the decree in question was rendered. There was nothing, therefore, abiding in them, which might aid the title of the defendant; but if this case had a common principle with that of Bowther v. Carlton, (in which, too, the objection, of the want of parties, was taken by the defendant,) it will be seen that the Court adopted the principle in that case, by analogy to the cases of aid-prayer at the common law. In those cases, the tenant for life, for example, is allowed to pray in aid of him in the reversion. The Court, by resorting to that analogy, seems to have admitted that this was a privilege in favour of the defendant, which he might claim on the one hand, or waive on the other; and it is probable that he would be even considered as waiving it by not claiming it. The Court considered it as ground of defence incident to the case of the particular defendant, and of which he only had knowledge, and was competent to claim or relinquish: they did not consider it as an ingredient of the jurisdiction of the Court of equity, and which, for the purpose of avoiding circuity, should be had, whether demanded or not, on the part of the defend-' ant. While the ground of claim I am now considering is, in this case, widely different from that existing in the case of Lowther v. Carlton; as, in this case, the vendor has no shield which would be competent to defend *and protect the rights of the vendee as aforesaid; the cases'are similar as to" the character of the pretension, which I have just mentioned. The pretension, in this case, as in that, would be only a privilege in favour of the defendant: it is not a sine qua non of the jurisdiction of the Court, without which no complete decree could be rendered in the cause: a complete decree may be made against him who has the complete legal title. There is this further difference between the cases, that, while, in that case, the aid of the vendor was in fact prayed, in this it was disclaimed. It was renounced on the part of the defendant; if not by not praying it, at least by the various positive acts of disclaimer already mentioned. It was not until the appellant saw the prospect of being defeated on those merits, which he had challenged, or invited the appellees to try, single and alone on his part, that he took this ground of objection; or, rather, it was then taken for him; and that in the appellate Court, in which it is not practicable for the appel-lees to obviate the objection.

These views of this subject preclude the necessity of examining the decisions of this Court, on the subject of parties. Whatever dicta, or doubts, may be found to exist therein, there is certainly no positive and solemn decision in conflict with these principles. It seems to have been the fashion in this Court, without always knowing why, or wheréfore, to object, in suits in equity, for want of parties. The ignes fatui arising out of this prolific subject of parties, have sometimes served to bewilder and mislead the Court; but, I believe, that this is the first time in which the subject has been fully and fairly met by this tribunal. I shall be happy if, in the decision now be to given, such criteria shall be established by the Court, as will bring all future questions of the kind to the proper test; and render these sightless and floundering objections less fashionable.

The foregoing remarks go upon the admission, that the trustees of Byrd had, in fact, given the appéllant a ^warranty, in the deed they made him, which would enable him to recover over, against them, in case of eviction. That, however, is far from being the case. That warranty is not only entirely wanting, but the deed carries the most ample proofs upon its face, that ua such warranty was intended. In addition to the enormous inadequacy of price before spoken of, and which is in utter hostility with the idea of passing a complete title, the omission of a clause of warranty, as to the trustees, while one exists as to Byrd, and his heirs, is decisive that none was intended as to the former; on the principle that “expressio uni us est exclusio alte-rius.” Again, that deed only disposing of the lots and land thereby embraced, with the exception “of such land as is laid off into lots and disposed of by lottery,” it may well be doubted (especially when it is found that the deed to Pendleton and Lyons has a similar exception) whether this land passed thereby, it having, in fact, been disposed of by lottery, as an appendage to the lots, and for which, consequently, the purchasers gave an ■ enhanced price. The ■ deed, therefore, relied on by the appellant,to' show the necessity of these parties, is a complete felo de se in this particular; it not only leaves it doubtful, to say the least, whether this land passed thereby, but shows, beyond a possibility of doubt,that no warranty was by them made or intended.

■ As to Pendleton and Lyons, and those representing them, under the deed of 1770, they have nothing to do with the present controversy. Their right, if any, will remain wholly unaffected by the present decision. However (as it at present appears) their fight may be considered as being prior to, and intercepting the legal right of the appellant, it cannot affect that of the appellees, it being posterior to the equitable contract, which is the ground'of their claim. It neither lies in the mouth of the appellant to object the want of a party under whom he does not claim, nor to impose it upon the appellees to engage in another and distinct subject of controversy. *It is no reason why the plaintiff should be delayed, or retarded, in his claim against the present appellant, that he shows another to be entitled, which also shows that he himself has no title. The object of praying in aid is to protect the title of the defendant — not to defeat that of the plaintiff. The deed of Pendleton and Lyons cannot affect this claim, (if that deed be taken to be still in existence, and unsatisfied,) for, another reason, namely, that it did not pass nor affect this land. It only passes to those grantees, such lands as were not “before sold” by the trustees, “and as they now” (in 1770) “have a right to sell,” under the original deed from Byrd to them. This land having been, however, before sold to the lotholders as aforesaid, or, at least, it being land which, in 1770, the trustees had not “a right to sell,” in consequence of the contract which is the ground of this bill, it did not pass by the said deed. The exception, in the deed, immediately following the foregoing passages of “the prizes drawn by the fortunate adventurers in the lottery,” cannot narrow the effect of those passages, so as to pass the land in controversy by that deed; 1st. Because a deed is to be so construed as to reconcile and give effect to all the material expressions thereof; and, 2dly. Because this land ought, on a liberal construction, to be considered as a part of those “prizes,” and, therefore, as exempted from the operation of this passage also. This deed, of 1770, therefore, has nothing to do with this land; and, if it had, the appellant has not shown that he has derived any right under it. If it be said that the appellant should be protected, on the ground of being a purchaser from Pendleton and Lyons, who it is also alleged were purchasers without notice of the appellees’ title; it is answered, that he not only did not purchase from them, but, also, that all and every of the notorious acts before relied on to convict Mayo of being a purchaser, with notice, from Byrd’s trustees, would equally apply to Pendleton and Lyons; and, indeed, perhaps, more so, as their purchase was more recent, after *the contract and circumstances aforesaid had their existence, than the purchase by Mayo.

Upon the whole, while I am of opinion that there was never a just ground of objection for want of parties defendant to this cause, and, however the objection, as to the party plaintiff, may be, on general principles, I am clearly of opinion that that objection ought not to be available under the circumstances existing in this cause. We ought not to suffer the appellee to be entrapped by this objection, after the appellant has elected to go to trial on the merits, and those merits are found to be against him.

I am of opinion, therefore, that the decree is right in the main; but it is erroneous so far as it invades the appellamt’s right to the ten feet of land lying along the canal. As to that extent, I am of opinion, that the decree should be reversed, and in all other things affirmed.

JUDGE FLEMING. This being a cause of much expectation and great interest to the contending parties, and having been argued with great ability, on both sides, the Court bestowed on it peculiar attention and deliberation; though much of what I had to remark on the subject, especially, respecting the capacity of the appellee to sue, and the want of parties (the only points on which I ever doubted) has been anticipated, and ably discussed by my brother Roane. I shall, therefore, confine myself principally to the merits of the cause; and, there being a division in the Court, shall, as the ground of my own opinion, take the liberty of briefly stating the origin, foundation, and establishment of the town of Manchester; (where there was previously a public warehouse, for the inspection of tobacco, called Rocky Ridge, a few traders and others settlers in the vicinage;) and, notwithstanding the jurisdiction of a Court of equity, in0the case, was vehemently denied by Mr. Williams, proceed to decide the cause purely on equitable principles; premising, that the appellee, after stating in his bill the *ground of his equity, proceeded to charge, “that John Mayo hath commenced an action of ejectment at common law against him, (John Murchie,) as trustee of the said town, in the Richmond district Court, and threatens to obtain judgment, and to turn your orator, and the said inhabitants, out of possession, notwithstanding this equitable title aforesaid;” and prays relief. To the above charge the appellant answered, “that, in consequence of the said bill and suit of the complainant, this defendant has suspended the prosecution of his ejectment, and has obtained a decree in this Court against the said trustees, ” (meaning Byrd’s trustees,) “to which, and the proceedings therein, this defendant refers; in order that the whole of this controversy may be finally heard in this Court.” To this answer the plaintiff replied generally; and thus were the parties, by mutual consent, fairly at issue, on the equitable- merits of the cause. It was urged, however, in the argument, that “consent cannot give a Court jurisdiction.” True, the maxim is correct, but applies not to the case before us; which needed no consent to give jurisdiction to a Court of equity; a Court of equity being the only proper tribunal for the hearing and decision of the cause ; and a party may, undoubtedly, by consent, waive every advantage that might be-«taken of error in form of the proceedings, in a Court of competent jurisdiction, and rely altogether on the merits of his cause; which is precisely what was done in the present case, if there be any such error in the' record; and the party shall be stopped and concluded by his own consent, so solemnly and deliberately stated, and sworn to, in his answer: and error in form only was stated, and objected to by one of his ingenious and learned counsel.

Let us now inquire in whose favour the equity of the case preponderates.

The late Colonel William Byrd, a gentleman of great influence in the country, as well from his rank as the *immensity of his fortune, distinguished and esteemed also for his strict honour and great liberality, claimed and obtained the entire confidence of his fellow subjects; and being proprietor of the soil where the town of Manchester stands, and of a large tract of country around, on both sides of James River, and wishing to raise a sum of money, proposed to dispose of a great portion of that estate by way of lottery, and to establish a town on each side of the river; and, in order to enhance the value of the lots, and encourage adventurers, he, in the month of July, 1767, jjublished the scheme of his lottery in the public newspapers; in which he stated, that the advantageous situation of the estate was too well known to require a particular description, though it might be necessary to inform the public that the obstructions through the falls, and in other parts of the river, might be removed, and the river made navigable to the said towns: “the navigation (said he) thereby will be extended and made both safe and easy for upwards of two hundred miles above the said falls, and a communication opened to the western frontier of the middle colonies; whereby there will be not more than sixty or seventy miles portage from James River to the Ohio; so that the immense treasure of that valuable country must necessarily be brought to market to one or other of the said towns; which will occasionally raise the rents, and enhance the value of the lands,and tenements, under mentioned, beyond the power of conception.”

in designating the prizes on the south side of the river, he stated the first prize to consist of a double forge mill, valued at /8,000 With two acres and a half of land adjoining, and 2,000 acres of the back land ; the use of the landing, the canal, with ten feet on each side, &c.

And (after noticing twelve lots already improved) headed “lots unimproved, each half an acre, to be laid off in a town convenient *to the river, with public landings: number of lots 300, at 25 pound each.” .¡£7,500

“Tickets to be had of the trustees, named above, also of Colonel Archibald Cary, John Hayles, and of the subscriber.

Signed, William Byrd.”

From the encouragement and allurements thus held out to the public, the tickets met with a rapid sale; and the greater part of them having been disposed of, the lottery was drawn the ensuing summer. I purchased four of the tickets, but they all having turned up blanks, I have no further interest therein. In the mean time, Mr. Benjamin Watkins surveyor of Chesterfield county, a gentleman well skilled in his office, and of undoubted integrity, was employed, by the agents of Colonel Byrd, to Jay off the town, agreeably to the terms held out by the scheme of the lottery: the events and circumstances which took place on that occasion have been detailed in sundry depositions filed in the record', have been sufficiently commented upon, and need not be recapitulated.

In the year 1769, an act of assembly passed “for establishing towns at Rocky Ridge,” &c. and, after a long preamble, it was enacted, “that the said first mentioned piece of land, lying and being at the falls of James River, on the south side thereof, be, and the same is hereby, constituted, appointed, erected, and established a town, in the manner it is already laid out into lots and streets, agreeable to a plan and survey thereof, made by Benjamin Watkins, surveyor of Chesterfield county aforesaid, containing the number of three hundred and twelve lots, as by the said plan and survey, relation being thereto had, may fully and at large appear; and shall be called and known by the name of Manchester.”

When we cast our eyes on the plan and survey of the town referred to in the act of assembly, it appears to extend upwards of half a mile parallel with the river; between which, and the canal mentioned in the proceedings, lies the narrow slip of land now the subject of controversy; which Colonel Byrd, in the year 1774, sold to *the father of the appellant, for about 25pounds; notwithstanding the same was, by the surveyor, when he laid off the town, specifically reserved for the .general use and benefit of the proprietors and inhabitants thereof; for doing which, he was authorized by his employers; (as ap) pears by sundry depositions in the record;- and was also, as such, ratified and confirmed by the aforesaid act of assembly, in the year 1769; and whether it was called a street, a common, a way, an easement, or was distinguished by any other name, seems tome quite immaterial; as, I conceive, the fortunate adventurers in the lottery, and the subsequent purchasers of town lots under them, have, by solemn compact, an undoubted right to the free use of the land in question forever: for this compact ought to receive as liberal and beneficial a construction, in behoof of the purchasers, as the site for a commericai town, and other circumstances, can admit of; because they promptly paid, for the premises, the full stipulated price, affixed by the vendor himself, thus avowedly and publicly bought and sold for that individual purpose.

I should not have taken notice of the small consideration the father of the appellant paid for the land in litigation, had not one of his counsel repeatedly asserted, with great emphasis, that it was worth half a million of dollars; but from what motive, or with what view, those assertions were made, we have yet to learn ; nor will I even hazard a conjecture on the subject, lest I be mistaken : but, be it as it may, and admitting them to be correct, or, that the land be worth double the sum stated, the counsel knows, or ought to know, that its value cannot, in the smallest degree, influence the decision of the cause; for, whether it be worth a dollar only, or a million of pounds, the rights of the parties are the same; and the Court will judge of them without regard to the value of the subject in litigation.

It was asked, too, with exultation, as a question unanswerable, “if the slip of land in dispute be decided to *belong to the town, how the inhabitants thereof could pass through it, from the Upper streets to the river, in a direct course, without committing a trespass on the proprietor of the canal?” It was an inauspicious question on the part of the querist; as it seemed an effort of a de-sponding advocate, to puzzle and raise difficulties in a tottering cause, unsustainable on rational grounds, rather than to define and enlighten one that might be supported on just and equitable principles; and tended more to strengthen than impair the equity of the appellee, had aid thereto been wanting. The answer to the question, however, is prompt and easy; to wit, “by erecting bridges across the canal, at such places as the inhabitants may think convenient, leading from any street in the town directly to the river; taking care not to obstruct the passage of the water to the mill, nor otherwise to injure the canal.”

The bridges erected may be such as that now standing across the canal,t on the public road, leading from the main street of the town, to the bridge on the river, and to Coutt’s ferry-landing below the town, which would be no detriment to the canal. That this position is reasonable and just, ■will appear evident, by considering- the purposes for which the canal was made, and why the use of it became an item in the great prize of the lottery, of which the •appellant is, by purchase, now the proprietor.

It was obviously to convey water, from the river above, to the forge and mill; and, therefore, the use of it was, of necessity, made a part of the capital prize. The mill has been rebuilt, and is now in useful operation. The ten feet of ground annexed to the canal, on each side thereof, was, principally, to furnish earth and stone to repair breaches that might be made therein, by tempests, floods in the river, or other accidents, several of which have happened within my observation, and by those means have been repaired. The same ground may serve also for other purposes, at the discretion of the proprietor; Provided, direct passages, from the streets *to the river, be not thereby obstructed; for, although, on general principles, the grant of the use of a thing, without a qualification, may be construed a grant of the thing Itself; yet the use may be so modified and appropriated, as to admit of a different interpretation ; and such, I conceive, the case before us admits of, and requires. For instance, the use of the landing was. included in the first prize of the lottery; evidently, for the convenience of shipping iron, flour, &c. from the forge and mill, and for receiving necessaries by water, which cannot be construed into an absolute grant of the landing itself, to the exclusion of all ■others; so, with respect to the canal, the use only of which, as appurtenant to the forge and mill, was held out to the public by the scheme of the lottery; and equity will construe it such a use as fully to answer the purposes intended, without prejudice to others; thus may it be useful to both parties, without injury to either, and the original object and intention of the flamer of the lottery be fulfilled; for that was the foundation of the claims of the parties on both sides, and the appellant ■can claim no better right than was vested in Harry Morse, the fortunate adventurer who drew the capital prize in the lottery.

It cannot be fairly presumed that the inhabitants will wantonly erect bridges across the canal, at heavy expenses, where they are not necessary, merely to vex the adverse party; but in progress of time, and future improvements of the town, several may be found convenient and requisite; and such, in my apprehension, they will have an undoubted right to erect.

By the act of Assembly, “to enlarge the powers of the trustees of the town of Manchester,” passed in the year 1778, it is (among other things) enacted, “that all ■sums of money to be recovered by this act, shall be applied, by the trustees, towards repairing the streets of the said town, or erecting wharfs, and improving the public landings within the same.”

*It is not contended, however, that this act strengthened the rights of the inhabitants to the land in controversy; but it shows the great attention the legislature -paid to the improvements of the town in its infant state; and their sense and understanding to have been, (perfectly coincident with my own,) that the purchasers had previously acquired the right to public landings, to erect wharves, and to every convenience the river, parallel with the town, can a fiord; which several rights, in my conception, were vested in them by fair purchase from the proprietor, for a valuable consideration, many years prior to the sale of the premises to Mr. Mayo; otherwise, where are the conveniences to the river, the public landings, and other advantages from an extensive commerce with the western country, ostentatiously held out to the public, and promised in the scheme of the lottery, to be found? Are they on the back lots of the town, half a mile from the river; at the toll house of the bridge, on an island, or, in the moon?

That a large commercial town, on a navigable river, which was contemplated and calculated to endure for ages, and is now daily improving in wealth and population, should be laid off, and established by law, under a solemn promise of the proprietor of the soil, held out to the public, of every convenience the river could afford, to induce our -citizens to become purchasers of lots, and inhabitants of the town, and the purchases, by solemn compact being made, that the proprietors and inhabitants are to be forever excluded from the free use and benefit of the river, is, in my conception, a position so preposterous, and such a solecism in jurisprudence, as not to require a serious refutation.

The appellant claims all the land between the river and the canal, parallel with the town; and should he succeed in his demand, and himself, or his successors, at a future day, through interest or caprice, erect a wall, or dig a ditch along the margin of the river, the inhabitants *could not even water their horses, but by going without the limits of the town.

On mature consideration of the cause, it seems, to me, that the proprietors of lots in the town of Manchester, and the inhabitants thereof, are, by fair purchase, well entitled to every convenience of public landings, wharves, navigation of the river, &c. appertaining to the slip of land in controversy, which the late Colonel Byrd, as proprietor thereof, might have used and enjoyed prior to- the publication of the scheme of his lottery, and that, by the after sale of the premises to Mr. Mayo, he committed a fraud on the adventurers therein, and those who have purchased under them.

But yet there appears a material error in the decree, which gives to the appellee not only the slip of land in controversy, but also the canal and its appendages, the free use of which, with ten feet of land on each side thereof, under the restrictions before mentioned, unquestionably belongs to the appellant, as appurtenant to the mill, of which, it appears, he is the lawful proprietor. I am, therefore, of opinion, that so much of the decree as gives to the appel-lee, for the use of the town, the canal, and ten feet of land on each side thereof, ought to be reversed, and the residue of the said decree affirmed.

The following was entered as the Court’s opinion.

“The Court is of opinion, that the said decree is erroneous, in having therein ordered, ‘that the defendant, John Mayo, do release all his estate, right, title, and interest, in the land in the bill mentioned, to the plaintiff, and his successors, trustees of the town of Manchester, for the use of the said town therefore, it is decreed and ordered, that the same be reversed and annulled, and that the appellee pay to the appellant his costs, by him expended in the prosecution of his appeal aforesaid here. And this Court proceeding, &.c. it is further decreed and ordered, that the appellant do release to the appellee and his successors, trustees of the town of Manchester, *for the use of the proprietors and inhabitants of the said town, for the time being, all his estate, right, title, and interest in the slip of land in the proceedings mentioned, lying between the river and the canal, also in the proceedings mentioned, except ten feet of land adjoining the same, on the north ea,st side, and the whole length thereof, as. annexed to the said canal; that the proprietors and inhabitants of the said town, for the time being, be forever quieted in the possession thereof; and that the appellant pay to the appellee his costs, by him about this suit in the said Court of chancery expended.” _ 
      
       1 Atk. 290 ; 3 Atk. 111; 2 Eq. Gases Abr. 165, pl. 5.
     
      
       2 Atk. 139.
     
      
       1 Munf. 303; 2 Eq. Cases, 632; 1 Wash. 41.
     
      
       1 Wash. 28.
     
      
      
        Note by Judge Roane. Since this opinion was delivered, I Rave seen, in the Journals of tile House of Delegates, on the 14th of November, 1776, a petition was presented by the trustees of the town of Manchester, asserting' the title now set np to the premises in question, and praying that an act might pass, more effectually to enable them to remove obstructions placed thereon. This petition was rejected on the 13th of December of the same year, on the ground, "that the matter thereof was cognizable before a Court of law.” It further appears, by the same Journals, that, at this time, the elder Mr. Mayo was a delegate for the county of Chesterfield, in which the said town lies. He, therefore, undoubtedlit had notice of the appellee’s claim as early as the date aforesaid; and hence it was, that that claim was never contested by him in his lifetime.
     
      
       Page 775-6, of the 7th London edit, with Williams’s additions.
     
      
       Wyatt’s Pr. Reg-. 304.
     
      
       2 Atk. 139.
     