
    COURT OF APPEALS,
    JUNE TERM, 1797.
    Somerville et al. vs. Trueman’s Devisees.
    Appear from a decree of the court of chancery (Ks-missing the biil of complaint.
    The bill was filed on the 23d of September, 1785, iu the names of James Somerville and Jinn his wife, against Benjamin Trueman, and stated, that Edward Trueman, being seised of parts of two tracts of laud called Blade 
      
      well” and «Thomas and Anthony’s Choice,” lying in I’rinee George’s comity, sold Hie same in fee to Thomas Tiueman in 1717, for 5CL. sterling, which was paid by T. Trueman, who died before any deed was executed:— That T. Trueman, by his will dated the 15th of September, 1717. devised this land to James his son, describing if as land bought from E. Trueman his brother. That E. Trueman on the 23d of July, 1720, executed the deed, exhibited to James Trueman, agreeably to the directions .of the will of his father, which deed was not recorded, conveying to him in fee 250 acres of land, uuder particular descriptions, with general warranty, and covenant for further assurance. The land is conveyed by the name of Blackwell, the courses in reality take in the land bought by Thomas from Edward Trueman, called Blackwell and Thomas and Anthony’s Choice. That James Trueman died in 1743. having devised this land to Thomas Trueman, the father of Ann M. Somerville, one of the complainants, who died, leaving the said Ann his lu-ir at law. That Thomas Trueman was the heir at law at James Trueman, and that James Somerville is married to Ann. That Edward Trueman is dead, and Benjamin Trueman is his heir at law, who claims the land by reason of the defective deed. That Benjamin Trueman, and Thomas Trueman the father of Ann, agreed to refer the dispute, and accordingly, by bond dated the 3d of December, 1770, it was referred to Charles S. Smith, Joseph Sim, William Bowie and Henry Tubman. That it was afterwards agreed that Smith should not act," and that Sim, Bowie and Tubman, on the 8th of April. 1771, awarded, that Benjamin Trueman should convey to Thomas Trueman, according to the deed before mentioned. That Benjamin Trueman did not convey, and has brought an ejectment. Injunction prayed, and that the defendants be compelled to execute a deed, &c.
    Tub answer of Benjamin Trueman admits, that at and before the year 1717, Edward Trueman was seised of the land called Blackwell, and Thomas and Anthony’s Choice, and died seised in 1729. That the defendant is bis son and heir at law. The defendant does not know of, or believe, there ivas any contract for the land between Edward, and Thomas Trueman, the elder. He does not know or believe that Thomas Trueman paid any money, or any thing valuable for the same, or that Edward owed him any money. He does not know or believe that Edward Trueman ever executed any deed for tbe land to James Trueman, tlic devisee of Thomas. He has understood from general reputation, that bis father married a second wife, wbo after his deatli married John Lawson-, and that Lawson and his wife gave James 
      
      Trueman the possession of the northernmost part of the two tracts, on account of a debt claimed by James True-man against Edward Trueman; the defendant was about 14 or 15 years old. That in 1759 the defendant sold the southernmost part of the land to Eoxton and Digges, and from that time till 1770, lived on a plantation of John Perrie; in that year he, took possession of a house, and the. land part of Blackwell and Thomas and Anthony's Choice, and has lived there ever since. He has been frequently asked for a deed, but no evidence of any contract was ever shewn, until Thomas Trueman, not many years ago, shewed him the deed before exhibited. He always refused to convey. The answer then states, tiiat the family of Thomas Trueman were always endeavouring to impose on him. fie states some instances, and some letters, from June 1760 to 1768. He also states the manner in which the ancestors of the complainants have claimed the location of the land. He states an instance of ill usage by John Perrie, in 1770, the whole of which is considered as unnecessary to be stated, as being entirely irrelevant to the case. That after those transactions, 1770, Thomas Trueman attempted to burn his house, and through duress he executed the bond stated in the bill. That he did object to Charles 8, Smith having any thing to do with the arbitration;but he never consented to the other arbitrators acting, but always denied their authority. He admits that Ann is the heir of Thomas Trueman} he does not admit the wills of James, or Thomas Trueman the elder. He admits the complainants, James and Ann, are married;— and that Joseph Sim and William Bowie made the award; but he does not believe that Tubman was present when the award was made, and he does not know whether he signed it.
    During the pendency of the suit, Ann Somerville, one of the complainants, an$ Benjamin Trueman the defendant, both died. The original bill was by order of the chancellor and consent of counsel amended, by inserting the names of the heirs of Ann Somerville; and at May term 1790, the proceedings were revived against the devisees of Benjamin Trueman,
    
    The counsel for the appellants, having in his argument before the court of appeals, stated very fully the testimony which was taken in the case, the Reporters deem it unnecessary to make any other statement.
    Hanson, Chancellor (December term 1794) “ There are such peculiar circumstances in this case, that the chancellor conceived it probable a decision of arbitrators, appointed by order of the court, with the consent 0f the parties, which would not operate as a precedent for the future determination of this court, or of any other regular standing tribunal, would not only be most likely to end all controversies, but place matters on a footing the most fair and proper, independent of law or the jurisdiction and establisned principles of this court, lie therefore proposed an order of reference. As the parties have declined the proposition, it is now incumbent upon him to pass such decree as appears to him consonant to the settled principles of this court.
    Tlie application of the complainants appears to rest on three several grounds.
    1st. That a defective conveyance hath heretofore been made, and that it is the business of this court to aid the defect.
    2d. That an agreement was formerly made between the ancestors of these parties; and that as every thing has been done on the part of the complainants, an execution of the contract on the part of the defendants ought to be enforced by this court.
    3d. That a submission to arbitrators was formerly entered into by the said ancestors, and that the defendants ought to be compelled to perform the award then made.
    1st. As to the first point it may suffice to distinguish between the defects in, and the defects of a conveyance. Where a deed has been completely executed, but there lias been a defect in the body of it, arising from a mistake, or omission, a court of equity hath sometimes supplied the defect; but where the execution has been incom - plete, this court hath never granted relief, unless on consideration of a fair, just, and valid agreement, in pursuance whereof the deed was intended to be executed; and this leads to the second point,
    2d. Some limitation of time, within which suit must be brought for specific performance, is certainly proper, It is said that the agreement, which is stated to have been made at least sixty or seventy years ago, has been fully performed on both sidos, except only the complete execution of a deed. This undoubtedly ought to be the case, if the lapse of time is not to operate as a bar. Hut on this head, the proof on the complainant’s side is defective; part of the conduct of their ancestor has been inconsistent with such an agreement; and the possession, which is said to have been gained in consequence thereof, has been at least as well accounted for in another way. In short, the chancellor’s conscience is by no means satisfied that there was such agreement; that every part of it has been performed on the side of the complainants; and that it would be proper for him to make a precedent by decreeing a specific performance by the defendants.
    
      3d. As to the third point there is not the least colour for its support. This court never has decreed the performance of an award, unless on consideration of a subsequent agreement to perform it. Suppose even {what is not the case) the award established, as it ought to be, there is not the slightest proof of such subsequent agreement. The fact is, that no such award hath been produced, nor is it stated in the bill that it has been lost. Had that been the case, nothing can be more clear, than that a man, by loosing a deed or instrument of writing, could not be entitled to a greater relief than he would have been entitled to before the loss. If the court should grant relief at all in such a case, it would probably direct an issue to ascertain damages, &c.
    A number of points, each of which is defective, are frequently supposed to produce something when taken collectively. But the idea is repugnant to reason, and can never be countenanced in a court of equity more than in a court of law.
    Whether or not abill of revivor lies against a devisee, the chancellor is at present under no necessity of deciding. The point may possibly be hereafter made in some other cause, and in this cause it hath not been argued.
    Upon the whole, it is, this 14th January, 179 5, adjudged, &c. that the bill of the complainants be dismissed, and that the injunction, &c. be dissolved, &c.
    The complainants appealed to the court of appeals, and the case was argued in this court by
    
      Hatty and Shaaff, for appellants, and by
    
      Key, for the appellees.
    
      Shaaff for appellants.
    This cause has every honest claim to the intercession of a court of equity for relief; and I trust, that upon an accurate consideration of it, there will be found no principle of law*, equity or reason, to prevent the appellants from a recovery. It would be-a great reflection on our laws, if a man had no mode of gaining title to land, which his ancestor had bought and paid for,* a deed executed in conformity to the purchase, but by accident defective; an uninterrupted possession of the greatest part of it from the year 1717 to this period; andan award of arbitrators, mutually chosen, in his favour, together witli a descent through four generations. Yet those are the facts which the proceedings in the cause unquestionably prove, and on which the decree 0 C the court of chancery has been given against the title of the complainants in the court below*.
    For the sake of uniformity, I will pursue this subject in the same manner the chancellor has done in his decree, by stating, that the complainants application rests on three grounds.
    
      First. That a defective conveyance has been made, and it is the business of this court to aid its defects.
    
      Second. That a contract was formerly made for the land in question, between the ancestors of the parties, and a full compliance on the part of the complainants, and that an execution of the contract ought to be enforced.
    
      Third. That there has been a submission to arbitrators formerly entered into by the said ancestors, and an award made, and that this court ought to enforce an execution of the award then made; and
    
      Fourthly, I will consider if the lapse of time will prevent a recovery.
    1. The first point, as to the fact of the deed b«dng executed by Edward Trueman: — It seems not to be questioned by the chancellor in his decree; indeed the thing is proved beyond all question by the depositions, although the defendant. (Benjamin Trueman) in his answer does not admit it, but endeavours to evade that point of the bill, by saying that lie does not believe it was executed by bis fathpr.
    The evidence as to the execution of the deed: James Trueman proves Edward 'Trueman’s signature to the deed by a comparison with the signature of Edward Trueman shewn him, and acknowledged by the defendant himself.
    
      James Collins proves the hand writing of Thomas Gantt, one of the instrumental witnesses.
    
      Thomas Gantt proves the band writing of Thomas Gantt and Levin Covington, the two subscribing witnesses.
    The evidence of those three witnesses, together with the circumstance of the possession going-along with the deed, beyond all doubt proves the existence of the deed. The only question is the effect and operation of it.
    One great ground of the jurisdiction of a court of chancery, is to relieve against accident and mistake, thereby to prevent the failure of an honest contract, on account of any omission or accident in the formal execution of it. This rule equally bolds, whether the mistake exists in the body of the conveyance, or in the mode of its execution, because certainly there is the same necessity for relief in one case as in the other.
    The authorities and adjudged cases certainly warrant tiie principles which I have laid down.
    2 Com. Dig. 171. If a farm is conveyed as lying in Jl, when it -lies in A and B, and the party lias declared that he has conveyed such a farm, it shall beso decreed. Cites 2 Ca. Ch. 68.
    
      So if in the conveyance the word «Heirs” is omitted; so if part of the land intended to be conveyed is omitted; so if more land is inserted than is intended to be conveyed; Cites 2 Vent. 345.
    
    In these instances, and many others which could be mentioned, the defect has arisen not from any formal defect in the execution of the conveyance, but on account of some omission or mistake in the body of the instrument.
    But relief is equally granted in those cases where the deed is defectively executed.
    It is laid down in tiie case of Fothergill and Fothergill, 2 Freem. 256, and 1 Eq. Ah. 286, that a conveyance, on good consideration, though defectively executed, equity will supply the defect. As in the cases of feoffment without livery, a conveyance of a copyhold, where there is a defective surrender. In those instances the ceremony of livery, or a surrender, was essential to the perfection of the conveyance in point of law, yet they were supplied by a court of equity.
    Every species of defect in the execution of a deed, may be relieved against in a court of equity, provided the contract is fair and honest; and a number of instances are collected in 2 Com. Dig. 171, the whole of which it is unnecessary to enumerate.
    
      LeJYeve vs. LeNeve, 1 Vea. 64. In that case LeJVcven on his first marriage, settled land to particular purposes, but the conveyances were never registered according to act of parliament. His first wife died, and he made a second settlement, and it was regularly registered, but the trustees and parties concerned had full notice of the first settlement. Lord Eardwicke decreed, that the second settlement should be postponed to the first; and that the trustees should convey accordingly; and cites three cases where the point ha«l been solemnly decided.
    This case fully establishes the point, that the want of registering is one of those defects which the court will relieve against; because the chancellor decreed a conveyance whiph wanted that solemnity to be perfected, ■against a person who had notice of that defect.
    2 Com. Dig. 171, and 1 Cha. Hep. 10. Equity will aid a bargain and sale which is not enrolled.
    From these cases it is clearly proved, that it is the practice of a court of chancery to supply the defects óf a conveyance, not only such as arise from omissions and. mistakes in the body of the deed, but also those which proceed from an error in the execution. And these authorities also prove, that there is no solidity in ‘he distinction mentioned in the decree, between the mistakes of, and the mistakes in a deed. In both cases tb, court will alike give relief, because a court of equity does not regard the form of a conveyance; but wherever the con^ract 0f the parties can be discovered, it will enforce the execution of it; and although a deed is defective to pass the legal estate, yet it will be evidence of the contract.
    Thé deed is in the bill stated to be defective, First, because the land contracted for was called Blackwell, and Thomas and Anthony’s Choice, and the deed expresses to convey only Blackwell, although courses comprehend the whole of the land purchased.
    It strikes me most forcibly that this in point of law, is no legal objection, because where there are two descriptions used, that one shall prevail which shall carry into effect the intent of the parties; and that in this case the description of the land, by metes and bounds, would be sufficient to carry the land according to that description . But should it be considered as alegal objection to passing the whole land, it is still one of those defects which a court of equity ought to have relieved against.
    The case in 2 Coni. Big. 171, taken from 2 Ca. Ch. 68, is exactly in point. There land was conveyed as lying in A, when it laid in A and B, and the court of chancery rectified the error.
    B ut the great defect in the deed is, that it was executed in 1720, and not recorded until 1771. The deed also is signed and executed before the magistrates, but there is no certificate of the acknowledgment. From the objections it is certainly inoperative to pass a legal estate.— However, it is equally certain that it is one of those defects which a court of equity will relieve against.
    The case in 1 Ve%. 64, and 2 Com. Big. 171, taken from 1 Cha. Rep. 10, is fully in point on this subject, proving that the want of recording a deed is one of those defects which will be relieved against. And every principle extends to the want of the acknowledgment of a deed.
    Having established that the defects in this deed are such as a court of chancery will generally aid — it is next to be considered whether this is such a case as the court will lend its assistance to. Although the court has the authority to aid the defects of a deed, yet there are many instances in which a court of equity would, and ought to refuse to interpose; as if the conveyance was voluntary, or if it was fraudulent. But no principle of equity can be more fully established, than that the court will aid the defect of a conveyance in favour of a purchaser, and also in favour of creditors, a wife and children.
    The chancellor’s decree itself seems to admit, that in case of a fair, just and valid agreement, and a defective deed executed in consequence of it, that the court would interpose. It is conformable to sense and reason that it should be so, and all the authorities before cited prove that a purchaser is emphatically one of those descriptions of persons in whose favour relief will be granted.
    In 2 Freem. 256, and 1 Eq. Ab. 286, the court determined that the defect would be supplied in case of an agreement on a good consideration.
    In 1 Vez. 64, the defect was supplied in the case of a marriage settlement, in which cases the parties claiming under them are considered purchasers in equity. The same in 2 Com. Dig. 171, and 1 Cha. Rep. 10, where the defect of enrolment in a bargain and sale was supplied.
    In 2 Vernon, 165, the court said there was no doubt but that in the case of a purchaser the want of a surrender would be supplied.
    In 1 Atkins, 561, the court declared that a defective execution of a power will be supplied as well in the case of younger children, and provision for a wife, as in favour of purchasers and creditors. Indeed, although there has been some doubt what other description of persons would be entitled to relief, there never was any doubt but that a purchaser was one of the favoured persons.
    I shall now contend, that the appellant’s ancestor, James Trueman, was a fair purchaser for a valuable consideration. To prove this the deed before mentioned is the strongest evidence. A man’s deed is always considered as the strongest evidence against himself; and the deed being fully proved to he the act of Edward True-man, it is evidence to a demonstration that the facts contained in it are true. The deed therefore proves that Edward Trueman was actually paid, or had secured to him 501. by James Trueman’s father, in consideration of which he executed the deed.
    The will of Thomas Trueman, the elder, states, that he had bought the land from Edward Trueman, and paid for it, and directs a conveyance to James True-man his son.
    What evidence can be stronger than the present? Edward Trueman’s will is dated in Í717; this will devises the land to James Trueman, and states a payment of the purchase money. This instrument is conclusive on all the representatives of the testator.
    Three years afterwards, in 1720, Edwanl Trueman, knowing the truth of what was stated in the will, and like a virtuous man, intending honestly to comply with his engagement with his brother, executes a deed, acknowledging the receipt of the purchase money, and conveys (as he supposed) the land to James Trueman the devisee in the will.
    
      This deed, although defective iu its execution so as to pass the legal estate, is very proper evidence of the con-0p pjie parties. It can be hardly necessary to cite authorities to prove wliat appears to be so consistent with sense and reason.
    
      Loft's Evidence, 462. A deed defective as an. indenture may be good evidence of a parol agreement.
    It may bo proper to remark here, that this deed of Edward Trueman differs from ordinary deeds, in which there is simply an acknowledgment of the purchase money, because here the deed acknowledges the consideration of SOL from (he father of the grantee, which will certainly amount to evidence of that fact, under the hand and seal of the party.
    There have been determinations of courts of chancery to this effect.
    
      Annomdale vs. Harris, 2 P. Wins. 432. The chancellor held, that a recital in a deed that the party had given a borní, is sufficient evidence of that fact; that it is. a confession of the party himself; and stronger than a verbal confession, being under his hand and seal.
    
    The parol evidence in this case strongly corroborates the written evidence produced. First, The uniform possession in the ancestors of the appellants from 1717 to this time, being a period of 80 years; then the evidence respecting the purchase between Edward and Thomas Trueman, the original ancestors of both; the particulars of which evidence, on both these subjects, arc collected in the consideration of the second branch of this case., to which may be added the opinion of the arbitrators, men of character and respectability. If this is not sufficient evidence of a contract made so far back as the year 1717, it will be wholly impossible, in a court of justice, by any species of proof, to establish a fact of so remote a period; for I do presume that stronger evidence of a transaction, happening 80 years ago, could in no instance be obtained. ’
    Courts have always paid great respect to old deeds, and papers of parties. This being ah old deed is evidence without proving it, possession haying gone along with it, and very properly, because the presumption is, that if the deed was fraudulent, the possession would have been contested; so in the present case, where the possession has followed the deed from 1717 until a few years ago, when the ejectment was brought, the court will intend that the deed was fair and honest, and on a yaiuablc consideration, as is expressed in the body of the deed.
    The consideration of the deed is 50Z- sterling; the land purchased is 250 acres, uncultivated, as appears by the deed itself, being stated to be in tlie woods, and I presume that 50b sterling will, so far back as 1717, be found to be a full consideration for that quantity of uncleared land.
    I have made the observations on the first division of this subject, which I think fully establish that the appellants are entitled to the aid of a court of chancery to supply the defects of a conveyance made to their ancestor, James Trueman, upon the ground that they are the descendants of a fair purchaser, for a valuable consideration, and as such entitled to the assistance of a court of chancery to supply the defective execution of a deed made to their ancestor. I will now consider
    2. The second point — That a contract was formerly made for the land in question between the ancestors of the parties, &c. Sic.
    
    Upon this ground the application is to a court of equity to compel the specific performance of a contract which has been fully executed on the part of the complainants, under the admitted power which a court of that kind possesses, of compelling the party specifically to carry into effect his contract, and not compel him to seek damages in a court of law.
    If the complainants have established in evidence a contract for the sale and purchase of the land in question, and a compliance on their part, they certainly are entitled to a decree for a specific performance of the contract, if not barred by some other circumstance.
    I shall be able to prove that the contract was made and performed on the part of the complainants ancestor. First, By proof of the facts, independent of possession. Secondly, By proving a continued possession for 80 years.
    
      First. As to the proof independent of possession. The first fact which is proved in the will of Thomas Trueman, the elder, made so far back as the year 1717, in which he devises the land in question to his son James, expressly stating it to be the land bought of Edward Trueman his brother, but had not been conveyed, and directed the land to be conveyed to his said son James.
    
    This circumstance, in a transaction so far back as 1717, ought to have great weight in the establishment of the point in dispute, and when attended with the other facts disclosed, is of much importance.
    In the year 1720 a deed was made by Edward Trueman to James Trueman, for the same land, and to the very same person, directed by the will of Thomas Truemanj and in the body of the deed the consideration money is acknowledged to have been received from Thomas Tv>.c■» man, the testator, himself,,
    
      This deed, in all probability, from the date of it, was made at a timo when the whole transaction was compietely in the mind of Edward Trueman, and n hen be was fully impressed with the justice of his brother’s right. What stronger evidence can there be of a contract to convey, than the person selling the land executing a deed to the very person appointed to receive it by the party purchasing? In my judgment no proof can be stronger. James Trueman was not the only son of Thomas Trueman; for the will stat.es he had an elder son named Henry; and no reason can be assigned why Edward Trueman should execute a deed to James Trueman, but the true one; that he had sold the land to Thomas Trueman, and that the deed was made to his devisee James, from whom he acknowledged to have received payment in the deed itself.
    The effect of this deed has been considered in the first ground of relief; hut it must be observable, that although as a defective conveyance it may form a substantive ground of relief, jet it may be very good evidence of a contract to be specifically carried into execution.
    The paroe evidence taken in the cause seems to corroborate the written proof.
    
      James Trueman — Has often heard that Edward True-man sold Thomas Trueman 250 acres of land of the north part of Thomas and Anthony’s Choice, and Blackwell. He was present at an arbitration between Thomas Trueman and Benjamin Trueman, when Richard Bright-well, then 80 years old, swore before the arbitrators, that Edward Trueman acknowledged he had sold his land to Thomas Trueman, and was paid for it.
    
      Mary Venables — Has heard John Brightwell and Joseph Lukworth say, that Edward Trueman sold the land and was paid for it, but never conveyed it.
    
      Samuel Cave — Has heard it frequently, but cannot tell from whom, that Edward Trueman sold Blackwell and Thomas and Anthony’s Choice, to his brother — was paid for it, but never made it over.
    
      James Collins — Has heard Henry Trueman say, that his father Thomas Trueman had bought the land where Russell’s quarter was, from Edward Trueman, and that Benjamin Trueman had promised to convey the land to Ann Somerville’s father. That Russell’s quarter is a part of Blackwell and Thomas and Anthony’s Choice.
    
    
      Richard Brightwell — Has heard 'that Edward True-man sold land to Thomas Trueman his brother, but does not know what land. Has heard his father, Richard Brightwell, repeat a conversation between Thomas and Edward Trueman, in which Edward acknowledged that be had sold part of his land to Thomas, who had paid for it.
    The depositions of all these witnesses fully prove what was the opinion of all the cotemporary neighbours of this transaction; all coinciding in a belief that the land was bought by Thomas Trueman, the elder.
    The evidence of James Trueman on this subject, it is apprehended, is strictly legal, declaring what a witness ([Richard Brightwell) swore on a trial by arbitration between those under whom both parties claim, and coming under the principle of permitting evidence to be given of what a witness swore at a former trial between the same parties, where the witness is dead.
    The second part of this ground of relief will now come under consideration.
    The evidence as to this part of the case is most full and conclusive, and proves a continued possession of all, but a small part of which Benjamin took possession, ever since the death of James Trueman, to whom it was intended to be conveyed by Edward Trueman, the original proprietor.
    The evidence as to the point of possession. Janies Trueman — knows that the northernmost part of the two tracts of land in dispute was in possession oí Henry True-man, as guardian to his son Thomas, to whom it was willed by his uncle James Trueman. That after the death of Henry Trueman, Ann his wife kept possession of the land until Thomas came of age, who then took possession himself. He states that the land was made over to James Trueman when he was a minor; that his mother kept possession until he arrived of age, and that then James took and kept possession as long as he lived, and willed it to Thomas as before mentioned. That about 18 years ago Benjamin Trueman took possession of the north tenement, broke into the house, See. That he paid assessment on the land as guardian to Ann M. Somerville, one of the complainants. That after Thomas Trueman had taken possession of the land, he threatened to sue Brightwell for a tract of land called Spinnum, taken up in Thomas and Anthony’s Choice. Brightwell gave up the land to Thomas Trueman, and paid a milled shilling rent.
    
      Alexander Tnicmam — As long as he can remember, which was about 30 years, Thomas Trueman had possession of the land in dispute. He rented a part of the land of Thomas Trueman for one year, 1776, and paid 10001b. tobacco rent. That about 19 years ago Benjamin Trueman took possession of the north tenement by force.
    
      . Mary Venables — That Thomas Trueman got possess!» on of the land from his uncle James Trueman, and continuet{ jn possession until she left the place, about 20 or 21 years ago. She was tenant for 12 years of that part of the land called Blackwell■, and Thomas and Anthony’s Choice, which is now in dispute, and paid 800lb. c.. tobacco, rent, to Thomas Trueman» That Benjamin Trueman took possession the same day she left it.
    
      Samuel Cave — His brother Thomas Cave rented the land in dispute, where Benjamin Trueman lives, of Henry Tmeman, about 30 or 40 years ago,
    
      James Collins — The land in dispute has been in the possession of Thomas Trueman’s heirs ever since he can remember; they held peaceable possession before Henry Trueman’s death. That Benjamin Tmeman never set up' any claim until after Henry Trueman’s death. He was acquainted with Benjamin Tmeman about 50 years. He always lived near the land. That Ilenry Trueman took out a commission to prove the boundaries of the land, but nothing was done.
    
      Richard Bñghtwell — Remembers that James Trueman built a house and settled negroes at the place where Benjamin Tmeman lives, about the year 1739. At the request of Thomas Trueman he served a warrant on Benjamin Trueman, who agreed to pay rent to Thomas.
    
    
      William Watson — Heard that James Trueman built a house where Benjamin Trueman now lives, and held it until he died.
    ' William Watson, junior — James Tmeman field the land until he died 45 years ago, Henry Trueman held it for his son Thomas, and after his death his wife held it for him; when she died, Thomas Trueman held it.
    
      'Thomas Gantt — In 1778 iie and Alexander II. Magnifier issued a warrant of forcible entry against Benjamin Trueman at the instance of the executors of Thomas True-man, and by a jury put them into possession.
    The above is an abstract of the depositions as to the' fact of possession of the land in dispute, being in the ancestors of the complainants, and it is impossible to conceive inore full evidence of possession.
    The possession is proved to have commenced about the year’ 1720, by proving a possession in James Trueman, by his mother holding for him during his minority, and his having a deed for the land while he was a minor, and this deed is dated in the year T720. See the deed exhibited, and the deposition of James Tmeman.
    
    Possession is proved in .James Trueman, and in Thomas his heir, by his guardians Henry Trueman and his wife. See the depositions of James Tmeman and William Watson, junior, &c. It is proved that different te.» nanis paid rent for the land to the heirs of Thomas True-man. It is also proved that Janies Trueman built a house in the year 1739, and settled a quarter of negroes, on the very place where Benjamin Trueman himself lived; and it is also proved, that in 1778 the representatives of Thomas Trueman had the finding of a jury, and the judgment of two justices, sitting to determine a writ of forcible entry in favour of their right of possession.
    From the evidence in the cause (and the credit of the witnesses is not impeached) how can there remain a doubt on the mind of any man, but that the possession has been in the complainant’s ancestor, of the greater part of the land, down to this period, and of the whole of it, until about 19 or 20 years before the taking of the depositions, which was in 1789.
    The defendant, in his answer, does not state that he ever had possession of all the land in dispute, but that in the year 1770 he took possession of part. This is also proved by the depositions, which state that about 49 years before the time of taking them, which will bring it to about 1770, he forcibly took possession by breaking doors, and locks, which is an additional proof of adverse possession.
    I observe, the chancellor in his decree has stated, that the possession of the complainant’s ancestors has been as well accounted for in another way. It is impossible the chancellor could have meant that the defendant by proof had accounted for the possession of the complainants, because the whole proof is directly the reverse; he must have alluded to the answer of Benjamin ‘Trueman, by which he states, that by general reputation he has understood that Lawson and his wife gave possession of this land to pay a debt with.
    The answer of a defendant, however positive it is, may be contradicted; and the contrary of this part of the answer is most completely established by the evidence in the cause; but the answer does not state the fact, not even that he believes it, but only that from general reputation he lias understood so; and it would be strange if such loose allegations should be competent to defeat a man’s claim in a court of equity or in a court of Saw,— Benjamin Trueman seemed sensible of the title of the representatives of Thomas Truemanj for until after the death of Henry Trueman, he never set up any claim to the land, and then only under the fraudulent pretension of the deed being defective.
    Having established tiie possession in the complainant’s ancestors, and connecting it with the other evidence, if fully entitles ns to the aid of equity on the second ground of relief.
    
      I ]iave proved the will of Thomas Trueman, the original purchaser, stating that he had bought the land, and for devising it to James his son. I have proved a deed under the hand and seal of Edward Trueman, the vendor of the land, acknowledging payment from the devisor, intending by that deed to convey theland to the devisee in the will. £ have proved a continued possession ill the heirs of the party claiming under the will for more than half a century; and it is humbly presumed that all this fully establishes a contract wholly performed, except the legal execution of a deed, and such a one in which a court of chancery will decree a specific performance.
    3. The third point. That there has been a submission and award in favour of the complainants.
    As to this point, the decree states that.there is not the least colour for relief; first, because chancery will not decree a specific performance of an award; and secondly, because no awai’d is produced.
    As to the fact of the arbitration bond and award. The bill states a bond in hcec verba, which is admitted by the answer. The bill also states an award by Sim, Bowie and Tubman. The answer does not admit that the award was made by all three of the arbitrators, but states that the defendant believes such award was made by Sim and Bowie. No principle is better established than that it is not necessary to prove what is admitted by the parties in their pleadings. If a deed is admitted, it need not be proved or produced; as on a plea of payment to a bond, it is never necessary to produce or prove the bond. In this case, therefore, it was not necessary to produce the bond, because its existence was admitted; nor was it essential to produce the award, because the award is admitted to have been made and signed by Sim and Bowie, which is enough for our purpose.
    It is stated, both in the bill and answer, that Charles S. Smith was. by consent of both parties, not to act; the remaining three then must necessarily have been the arbitrators. In fact, Sim and Bowie alone signed the award; but it is proved in the case, that any two were to make the award.
    
      James Trueman proves, that the arbitrators were Joseph Sim, Henry Tubman, and William Bowie, and any two of them; and that Sim and Bowie awarded in favour of Thomas Trueman.
    
    
      William Bowie, one of the arbitrators, proves, that the arbitrators met and went on with the business with the assent of the parties, and signed the award in favour of Thomas Trueman.
    
    
      The depositions of James and Alexander Trueman both prove the award made by Sim and Bowie in favour of Thomas Trueman.
    
    Thus, then, by the admission of the answer, and the testimony in the cause, the existence of the award for the land in dispute is fully proved to have been made by the two arbitrators; although the defendant admits the existence of the bond, yet he wishes to avoid it by duress, but in this the falsity of his answer is completely established by evidence.
    It may be proper to remark, that all the prolix history of the oppression of John Perrie, is wholly out of the question, because it is stated in the answer to have happened before the execution of the bond, and has no connexion with the case; the evidence of the execution is now to be considered.
    
      William Bowie proves, that the arbitrators met and went into the business with the assent of the parties.
    
      James Trueman proves, that he was on the land when Benjamin Trueman took possession. That Benjamin Trueman was the first person who proposed referring it, and that Thomas Trueman agreed to it. That Benjamin Trueman agreed to pay GOOibs. of toba.cco rent, if it was adjudged against him, and gave a twist of tobacco as an acknowledgment.
    
      Alexander Trueman is of opinion, that Benjamin. Trueman entered into the bond voluntarily; that he agreed to pay 600lbs. tobacco if it was determined against him.
    These three depositions certainly prove that the answer of the defendant is untrue in this particular. Indeed, the chancellor in his decree does not even hint that the reference was to be suppressed on the ground of duress, but refuses to aid on the ground that a specific performance of an award will not be decreed, unless on the ground of a subsequent assent.
    It is difficult to tell what is the rational ground of distinction, as tó this purpose, between a bond conditioned to convey land, if arbitrators chosen by the parties shall so award, and a bond conditioned to convey land upon the payment of a sum of money, or the doing a certain act; why in the latter case a performance will be decreed, and not in. the former, even when the party to convey has attained some valuable purpose by the arbitrament, as the settling of a, difference,, or the release of a debt.
    The reason why applications to the court of chancery have been unfrequent on subjects of this nature, arises from this, because the matter of an award is generally of a personal nature, as the payment of money, which 
      is proper to be sought for in a court of law; but I have not been able to find any adjudged case where the court jias determined that they would not decree the specific performance of an award lor the conveyance of land» where the party is ready to perform every thing on his part to be done.
    There are many instances in which a court of chancery has decreed the performance of an award. I will state a few. Pooke and Pipe, 3 Cha. Hep. 20. An andent award respecting a term of 500 years, which was performed by one of the parties, was decreed to be assigned. In the case at bar the land being ours we hail nothing to do on our part; the only act to be done was a conveyance to be made by the defendant, and seems to come within the principle of the case cited. 2 Vern. 25, Norton and Mascal. There was an award not binding iu form of law. The party made atender, but there was no other execution on his part, and the court decreed a specific performance. Mall and Hardy, 3 P. Wms. 187 to 190. It is mentioned by the author that decrees to compel performance of awards arc uncommon, because they arc generally for payment of money; but when tlie award is to convey an estate, &c. if the defendant has accepted what is awarded in lieu of the estate awarded, it is proper to decree a performance.
    If there is a bond to secure the performance of the award, and a suit is brought for the penalty, a court of chancery will relieve against the penalty, on the conveyance of the estate awarded; and surely on principles of reason and equity, the party to whom an estate is awarded ought to have a right to apply directly to the court of chancery for a specific performance of the award, where the opposite party may apply to that court, and gain relief, on his conveyance of the estate awarded.
    However it seems universally admitted; that if the party assents to an award he may be compelled to perform it; but tlie decree states there is no evidence of an assent. We will examine it. An assent is a fact which may be collected from evidence, and there is no doubt hut that this assent may as well bo implied as express.
    It is stated in the bill, and not contradicted in the answer, that the award was made about the year 1771, in favour of Thomas Trueman. The deposition of William Bowie also confirms it in a great degree. Hence we may conclude the fact to be so, as in truth and reality it ivas. And it is also established, that the heirs of Thomas Trueman has been in possession of the land, claiming title to it ever since, until the filing the bill in 1785, which is a period of 14 years.
    
      This I think is a very sufficient evidence of an assent to the justice of the award, not forgetting that William Bowie proves that the business was entered into by the assent of the parties; and that Benjamin Trueman urged the arbitrators to a settlement of the business.
    It is therefore submitted, whether on the ground of the award, and 14 years continuance in possession after-wards, the party was not entitled to a decree-in his favour in the court of chancery.
    
      4. The last point remains to be considered, whether the lapse of time will prevent a recovery?
    It must be observable that all acts of limitations respecting rights to land, and decisions of courts of equity in analogy to them, have been to protect men’s possessions, and only have operation when men are out of possession. And the chancellor in his decree seems to admit, that if we prove a contract, and an uniform possession under it, that then length of time will be no objection to our recovery; but he doubts the sufficiency of the evidence to those points.
    The period which courts of equity have fixed on, beyond which they will not disturb a possession under a legal title, by decreeing performance, seems to be 20 years, at any rate not a shorter time. 2 Eq. Jib. 576, Stone vs. Stone. Possession for more than 20 years, under legal title, will not be disturbed in equity.
    1 Eq. Ab. 306. 2 Vern. 127. Scolcjield and Whitehead. A bill for specific performance of a covenant was dismiss? ed where the opposite party was in possession 60 years.
    But in these cases, and all others on the subject, to prevent the party from a specific performance, it is'necessary that the opposite party should be in possession, in which case a neglect to apply for performance will be considered as a dereliction of tbe right.
    In a bill of this nature there is great resemblance to bills to redeem, as to length of time, If the mortgagor is in possession of the property, or even of a part of it, be may redeem at any time.
    
      Select Gases in Cha. 55, 2 Eq. Ak. 602 (n.) It was agreed, that where the mortgagor is in possession of any part of the land, length of time shall never affect him; and that the computation of time shall only commence from when the mortgagee got possession of the whole.
    In the present case tbe party applying for a performance has always had possession of the greater part; for the defendant himself only states a possession of part; and consequently we come within tbe case cited.
    But the defendants have never had possession of any part of the land a sufficient time to bar a recovery; to prove which it will be necessary to have recourse to the papers. The answer states, that Benjamin Trueman took possession of part in the year 1770; the bill in this case was filed in the year 1785; so that only 15 years elapsed before this suit was brought; and no authority can he produced to prove that 15 years has been sufficient to bar a recovery of this nature. However, the party was not idle during that time, because in the year 1771 he had an award in his favour; and in the year 1778 he gained possession by legal course, viz. by the finding of a jury, and the judgment of two justices sitting on a warrant of forcible entry.
    From these observations it is contended that the lapse of time will not bar a recovery in this case. Upon all the different grounds of relief it is presumed the appellants are entitled to a decree in their favour; and from the great importance of the cause to them, I have been induced perhaps to travel further into the business than was necessary. They are not searching into antiquated titles for the purpose of harrassing their neighbours, but are only defending their possessions, which has been handed down to them from their ancestors in a succession of 80 years. It is the appellees who, by bringing an ejectment at law, have attempted to defeat the solemn act of their ancestor, and even to set aside the award of men of respectability and character, chosen by themselves.
    
      
      
         See Hawkins vs Hanson, Ante 1 Vol.
      
    
   The court on appears

[Rumsey, Ch. J. Macicarr and Jones, J.]

Reversed the decree of the court of chancery, and decreed, that the chancellor pass and make a decree, directing that the appellees duly execute a deed or deeds of conveyance, to be acknowledged and recorded according to Jaw, thereby conveying to the appellant, James Somerville, lor life, with remainder in fee to the other appellants, as tenants in common, all the right, &c. of the said appellees, respectively, of, in and to, all those parts of two tracts or parcels of land called “Blackwell,” and “Thomas and Jlnthomfs Choice,” described and included within the limits and courses of the deed heretofore executed by Edward Trueman to James True-man, exhibited in the bill of complaint; and also decree a perpetual injunction, &c. &c.  