
    Boykin’s Devisees v. Smith and Others.
    Monday, March 16th, 1812.
    1. Real Estate — Court-House—Presumption of Title.— The Court of a County having caused a Courthouse and Jail to be erected, In or about the jear 1764; and Courts having been continually held in such Court-house, until the year 1801, it ought, in a Court of equity, tobe presumed that the title to two acres of the land built upon, and adjacent, were duly vested in the Court and their successors; although no deed from the original proprietor can be produced.
    2. Same — Same—Same.—Quaere, ought not such presumption to take place at law, as well as in equity ?
    3. Ejectment — Chancery Practice, — It seems, that in such case, a decision in ejectment, against a person claiming -by assignment from the County Court, is no bar to his recovering the land in a Court of equity.
    4. Release — Entry in Open Court — Validity under Statute of Frauds. — A release entered of record, by a verbal direction in open Court, is valid under the statute of frauds; for the clerk who makes the note or memorandum, Is to be considered as the agent of both parties.
    5. Chancery Practice — Amendment of Biil. — Queere, after a suit in Chancery has been set for hearing, has the plaintiff a right to amend his bill, before the hearing, as a matter of course, upon paying the defendant all costs occasioned thereby? or is such amendment to be permitted only upon good cause shown? See Rev. Code, vol. 1, p. 66, c. 64, sect. 23; Coop. Eq. 332, 836.
    Upon an appeal from a decree of the Superior Court of Chancery for the Wil-liamsburg District, by which a bill filed by Francis M. Boykin, James Johnson, and Anne his wife, was dismissed with costs.
    The bill stated, that on the 7th day of January, 1800, the Legislature of this Commonwealth enacted a law entitled, “an act for altering the place of holding Courts in the County of Isle of Wight;” that by the said law certain Commissioners were appointed to contract with Francis Boykin, late of said County, for erecting at his own expense, a Court-house and Jail, at the most convenient place on his land; in consideration whereof, it was enacted, that whensoever he should have completed the said buildings, and the same should be received by the said Commissioners, thenceforth, all the public buildings at Smithfield, belonging to the County of Isle of Wight, should be vested in him, to and for his own proper use, &c. that by an act passed the 6th day of January, 1802, to explain the above-recited act, the land, set *apart for the use of the said buildings in the town of Smithfield, was vested in the said Francis Boykin, his heirs and assigns; that under a contract with the said Commissioners, he proceeded to build, on a place selected by them, on his land, and at his own expense, a Courthouse and Jail, which was received by the Commissioners; and that the Court for the County of Isle of Wight had since been constantly held at the said place; that by the will of the said Francis Boykin, the plaintiffs were entitled to the land and public buildings in Smithfield, vested in him by the said Acts of Assembly; but that the defendants, heirs of a certain Thomas Smith, and claiming under him, had got possession, and refused to surrender the same, under various pretences, which were merely fictitious; for so lately as the year 1798, the said Thomas Smith disclaimed, in open Court, alt pretensions of title to the said land, and requested the Clerk of Isle of Wight to enter a release of all his right, title, interest, and claim thereto, which entry was accordingly made at the time, on the solicitation of the said Thomas Smith. The prayer of the bill therefore was, that the plaintiffs might have possession of the said land and public buildings in the town of Smithfield; that the defendants account for the rents and profits thereof; and for general relief.
    The defendants, by their joint answer, denied that the Commonwealth had any title to the lands and buildings in the bill mentioned. They stated that Thomas Smith, under whom they claimed and held, was, on the 1st of November, 1754, seized in fee simple of the lands in dispute, and in order to enhance the value of his adjoining estate, then agreed to the erection of certain buildings thereon, for the public use of the County of Isle of Wight, as a Courthouse and Jail. They admitted that the land was kept in the public use and occupation of the said County, for the purposes aforesaid, from that time until the year 1801. They admitted further, that on the 4th of June, 1798, the said Thomas Smith, for the aforesaid ^purpose of increasing the value of his adjoining lands, in open Court, verbally declared, that he thereby relinquished all his right and interest to the said land, and its appurtenances, to the said County, for the purpose of continuing the Court-house and other public buildings thereon, for the use of the said County; and that this verbal release was entered of record. But they expressly charged that there never was any written conveyance or release, executed by the said Thomas Smith, disposing of the said land. They conceived, that as the possession aforesaid of the County of Isle of Wight was far short of fifty years, and as he never conveyed the said land by writing, the title continued in him.
    The defendants farther alleged that Francis Boykin, under whom the plaintiffs claim, instituted an action of ejectment, to recover the same land, in the Suffolk District Court; that, in that, suit, a case was agreed, and after solemn argument, determined in favour of the defendants; an appeal from which decision is still pending. They relied upon that judgment as a bar to the complainants’ recovery before the Court of Chancery, as well as a plea to its jurisdiction. They conceived, however, that the equity, as well as the law of the case, was on their side; the only consideration which actuated Thomas Smith, in making the aforesaid verbal gift or release, having been the expectation of benefit to his adjoining estate, by the Court’s continuing to sit in the town of Smithfield; which benefit was lost by the removal of the seat of justice from tnat place. They therefore submitted to the Court, 1 ‘whether it could be consistent with equity for the Commonwealth to deprive them both of the consideration and the property.”
    The record for the proceedings in ejectment was among the exhibits. In the case agreed in that suit, it was stated that the verbal release by Thomas Smith, in open Court, was “for the purpose of increasing the value of his adjoining lands;” but the clerk’s entry of that release (which was set forth in haec verba) mentioned no *such consideration, or condition, but expressed the release as absolute. The case agreed, also, stated the other facts, concerning the seisin of Thomas Smith, in the year 1754, &c. in conformity with the answer.
    No depositions appear to have been taken in the cause, which, on the 30th of June, 1808, was set for hearing on the plaintiff’s motion. At a Court held the 27th of April, 1810, a motion was made by the plaintiffs to amend their bill, which the Chancellor overruled; but the amendments being prepared and read to the Court, permitted the same to be filed, “among the evidence in the cause, as part thereof.” In those amendments, the plaintiffs averred that Thomas Smith never was seised or possessed of the land in question; that one Arthur Smith, uncle of the said Thomas, was, at or about the year 1754, and long before that time, seised of the same, and of the lands adjoining; that the records of the Court of the Isle of Wight County, at or about that time, and for several successive years, appear to be lost and mutilated, so as to prevent any direct and clear evidence of the facts as detailed in the said case agreed, relative to the erection of said buildings for public use; and, therefore, the facts so stated are founded in mere conjecture; in opposition to which a fair presumption might and ought to arise, from the nature of the transaction, the duty and power of the Court; that Francis Boykin did institute an ejectment, and that such proceedings were had thereupon as stated by the defendants; that the appeal from the judgment in that action abated by his death, and was not revived; that the case agreed presented only one point, viz. whether the declaration said to be stated on record by Thomas Smith, in 1798, was a legal con-vej'ance of the property in dispute; in which it is manifest that the said Francis Boykin mistook his remedy; that the case aforesaid was defective in another view; that it did not distinctly set out the performance by said Boykin of the conditions on which he was to take the property in contest, which ,conditions *have been fully performed; that it is fair to presume, especially after the lapse of fifty years, that the said Arthur Smith had sold to the County of Isle of Wight the said two lots of ground, and received a proper consideration therefor, as the said County had a right to purchase for that object; or that if he gave the said two lots, the object with him was to increase the price of his other lots and land; “a consideration which the said Arthur, and those claiming under him have enjoyed, because the fact is that the lots are sold by him, or them, for an increased price, so as to give an ample consideration for the two acres given to the County; that it is not distinctly seen how the said Thomas Smith derived his title to these lots from the said Arthur; that if he did derive any title thereto in any manner, the declaration made by him in 1798 should be considered as binding him in this Court, where the substance, and not the form, of things should be regarded; more especially as the record of this declaration is an unqualified act of the said Thomas Smith, and contains no reservation of any purposes, as the case agreed would seem to import; that it is unconscionable, in the defendants, to take and hold possession of property, of which a gift, or sale, may fairly be presumed by Arthur Smith, or of that which has been relinquished by their ancestor, because of a defect in legal forms; and that it is the province of this Court to suppljT legal defects, to cause that to be done which ought to have been done, and to carry into effect agreements made upon fair consideration. ”
    The cause having been set for hearing, and the Chancellor (Tyler) discerning no reason to delay the decision thereof, no “motion having been made to continue the same,” he was of opinion “that this Court hath no jurisdiction over the subject matter of this suit, the same having already been decided by a Court of competent authority.” He therefore dismissed the bill; whereupon the plaintiffs appealed.
    *Writ for the appellants,
    relied on three points; viz. 1. The Court of Isle of Wight County had a good equitable title to the land in controversy, there being no deed, but reason to presume a parol contract, and payment of a valuable consideration to the proprietor. The transfer, therefore, of the Court’s title to Boykin, gave him a good right to sue in equity, though not at law.
    2. The proceedings in the action of ejectment are no bar to the suit in Chancery; the only point submitted by the case agreed relating to the legal title; beside which, it appears, from the amended bill, that the case agreed was erroneous in many respects.
    3. The Chancellor erred in refusing leave to amend the bill, at our costs. He permitted, indeed, the amended bill to be filed “as evidence.” If he could with propriety do this, the decree is erroneous, being in opposition to the evidence. If he could not, the amended bill should have been received, and the plaintiffs allowed to support it by testimony.
    Wickham, contra.
    If Boykin had any right at all, it was what the law gave him — merely a legal right; but he has none in law or equity.
    He comes into a Court of equity, on the ground that he has not a legal right. Yet twenty years’ ‘possession is a sufficient title in ejectment; and, according to his own showing, the County, under which he claims, had possession a much longer time.
    The bill does not rely on any purchase by the County. It does not say that the land was paid for, nor at what time it was taken for public use. The answer speaks of the transaction as a voluntary assent of Thomas Smith, that the buildings might be erected to enhance the value of his adjoining lands; to be used, so long as the Court should choose to use them as a Court house and Jail. There is no proof that “two acres” were laid off, or any certain metes and bounds. His declaration in 1798, minuted by the clerk, could not operate a conveyance; for lands *pass only by livery of seisin, or writing sealed and delivered. But his declaration was that he released to the use of the County. Considered as a release, it was void; there being no relessee; for a County is not a body politic and corporate, able to take a release. It operated, therefore, only as an agreement or consent, that the land might be used for a Court house and Jail; his object being to keep the Court house there. It could not be his intention that they should sell it the next minute. Boy-kin, after getting the Court house removed, comes with a bad grace to claim our land. The strict right of the Commonwealth was all he could get by the Act of Assembly; and this is one of the cases, above 'all others, in which a Court of equity ought not to interfere.
    2. The mistake in the case agreed, in the ejectment, is no ground for equitable jurisdiction. A new action of ejectment may still be brought, and a new case might be agreed. The statement heretofore made, would not be binding upon the parties, in the new ejectment. If there had been any circumstance to induce a presumption of a conveyance, the jury, in a Court of law, could have presumed it.  But, on the contrary, there is the strongest ground for presuming the erection of the buildings to have been merely permissive, and that the right of the County was to cease whenever the Court house should be removed.
    3. This was not a proper case for granting leave to amend the bill. The rule is, that the bill is not to be amended at the hearing without good cause shown; and none was suggested. Besides, the motion was not for a continuance, but for leave to amend, and try the cause immediately; which could never be tolerated. The Chancellor could not have intended to receive the amendments to the bill as evidence in the cause. The record in this part of it is loosely worded; but the meaning may be, that he received the writing (which was offered) as evidence toward supporting the plaintiff’s motion for leave to amend his bill.
    *Wirt, in reply.
    This is a common case; a suit in equity to enforce an equitable title; there being none that can be enforced at law. The question is, whether, after such length of time, and the release by Thomas Smith, in open Court, payment for the land ought not to be presumed. I do not contend that a deed is to be presumed. This could not have been the case; for the Court of a County could not take a deed; since it is not a body corporate. EJven supposing the consideration of the bargain, between Arthur Smith and the County, was the enhancement of the value of his adjoining lands, the erection of the public buildings was a compliance with the consideration.. He gained the object he had in view; and this was sufficient to give the County an equitable title. Mr. Wickham contends, that this enhancement was to be perpetual. But Smith knew that a .Court house could at any time be removed, and of course submitted to the risk of such removal. The Court not being a body corporate, could not maintain ejectment. Of course, Boykin, their vendee, could not.
    As to the amendment to the bill; the Chancellor was bound to grant leave to amend, on payment of costs. He plainly received the amendment as evidence in the cause; for such are the express words of his decree. This was truly an original and extraordinary course of proceeding; and, I admit, was wrong. His meaning was, that allowing it to be evidence, it could not affect the case; the door of the Court of equity being shut by the judgment in ejectment.
    Wickham. It is plain from the law,  that Boykin’s right, if any, is strictly legal. The act of 1748 says, that “the Court may purchase two acres, whereon to erect their public buildings, for the use of their county, and for no other use whatever.” It follows, therefore, that when a Court house is removed, the land reverts to the original proprietor. The fee simple is declared to be in the Court and their successors, so long as it is applied *to the use of the County, and no longer. It is therefore only a base fee, like an estate to a man and his heirs, while a certain tree shall stand.
    After a cause is set for hearing, the bill cannot be amended, without good cause shown. Otherwise a lis pendens might be kept up for ever.
    The case presents another point. The devisee of Boykin could not sue; for the devise was void, there being, at the time, a person holding the legal title, in full adverse possession.
    
    Wirt. The act of 1748 gives a fee simple to the Court and their successors. The words used in the law are intended to vest in the County the exclusive property for its use. But when new property is purchased, and paid for with the old, the latter is in fact applied to the use of the County. The Court appointed Commissioners to contract with Boykin. The heirs of Smith stood by and did not interfere. Ought they now to be permitted in equity to take from him the property he was to receive in exchange for that which he parted with? His was only a parol contract, and his right only equitable. We do not claim under the Act of Assembly, but his contract with the County. Could the Court make him a deed, or any contract with him but by parol?
    A devise of an equitable interest is clearly good, so far as to pass such interest to the devisee.
    
    
      
      Ejectment. — See monographic note on "Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
    
      
      Statute of Frauds.-See monographic note on "Frauds, The Statute of” appended to Beale v. Digges, 6 Gratt. 682.
    
    
      
      Chancery Practice — Amendment of Bill — When Leave Granted. — As a general rule, a court of equity will, at any time before the hearing, grant leave to amend where the bill is defective as to the parties, or the mistake or omission of any fact or circumstance connected with the substance of the bill, or not repugnant thereto. This amendment may be by common order, before answer or demurrer, and afterwards by leave of the court. Holland v. Trotter, 22 Gratt. 139, citing the principal case; Mason v. Nelson, 11 Leigh 227; Stephenson v. Taverners, 9 Gratt. 398; Smith v. Smith. 4 Rand. 95; Sillings v. Bnmgardner, 9 Gratt. 273. Thus while the plaintiff will not be permitted to make a new case, he may so alter the frame and structure of his bill as to obtain an entirely different relief from that asked for originally. Belton v. Apperson, 26 Gratt. 217. For further information on this subject, see monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
    
    
      
       Tanner’s Administrator v. Saddler, 8E. & M. 870.
    
    
      
       Rev. Code, vol. 1, p. 86.
    
    
      
       Ed. of 1769, p. 179, c. 4, sect. 30.
    
    
      
      Note. See Hyer v. Shobe, 1 Munford, p. 200.
    
    
      
      See the authorities cited, 2 Munford, p. 203.
    
   Monday, March 23d, the following opinion of the Court was pronounced by

Judge Roane.

“The Court is cf opinion, that as the act of 1748, in relation to the erection of Court houses in the several Counties of this Commonwealth, was anterior to the acquisition of the lot, now in question, by the Court of Isle of Wight County, was a general law which all the County Courts were bound to take notice of, and conform *to, and made it the duty of such Courts, in relation to Court houses thereafter to be erected, to purchase two acres of land for the purpose aforesaid; (for the acquiring and holding of which the said Courts respectively, and their successors, were made competent by the said act;) it ought to be presumed, at this distance of time, that the title to the said lot was duly acquired by the Court of that County, although a deed may not have been’ made therefor, or may have been lost; (in which last case, an application to a Court of equity, to restore the said deed is equally proper;) and this the rather, as it is admitted by the appellees, that their ancestor, the tenant of the said land at that time, agreed to the erection of the public buildings thereon, in consideration of the enhancement of the value of his adjoining property. That agreement, although it may not have been evidenced by writing, being anterior to the Act of frauds, and founded on a valuable consideration, would have been binding in a- Court of equity; even had it not been carried into complete execution, by the erection of the public buildings thereon, at the expense of the County, the holding the public buildings there for a great number of years, and the consequent enhancement of the value of the adjoining land. The Court is further of opinion, that the release of Thomas' Smith, (under whom the appellees claim,) contained in the proceedings, being founded on a valuable consideration, (namely, the agreement and erection of the public buildings before mentioned,) is not only obligatory on the appellees, but even satisfies the provisions of the said Act of frauds; the clerk of the Court, in entering the said release of record, being, quoad hoc, the agent of both parties.' On these grounds, and on that of the County Court of Isle of Wight having duly assigned their right to the premises to- Francis Boykin, (under whom' the appellants claim,) by accepting the Court house erected by him, under the Act of January, 1800, the Court is of opinion that the equitable title of the appellants to the said lot should be carried into *effect; and that the said decree - is erroneous; therefore, it is decreed and ordered that the same be reversed and annulled, and that the appellees pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And this Court, proceeding to make such decree as the said Superior Court of Chancery ought to have pronounced, it _ is further decreed and ordered, that possession of the premises in question be delivered up to the appellants, that the rents and profits thereof be accounted for by the ap-pellees, and that they release all their right in the premises to the appellants. And it is ordered that the cause be remanded to the said Court of Chancery to be finally proceeded in pursuant to the foregoing opinion and decree.”  