
    *Boyd and Wife v. Hamilton’s Heirs.
    Decided, Jan. 14th, 1820.
    I, Equitable Relief — Equitable Title in Land — Case at Bar. — A plaintiff claiming an equitable title to a tract of land, against the heirs of a trustee, in whom the legal title was by virtue of an ancient patent, and against the heirs of a third person, who have held possession for a long time, by virtue of a patent of subsequent date ought not to be denied the aid of a Court of Equity on the ground of his not producing the Entry on which such ancient patent was founded; if it appear that the land in controversy was covered by that Patent; as to which fact, if the testimony be doubtful, an issue ought tobe directed, to be tried by a Jury.
    Upon an appeal from a Decree of the' Superior Court of Chancery for the Staun-ton District, in a suit brought originally, by Andrew Boyd and Mary his wife against James Hamilton, James Thompson, and the legal representatives of William Thompson deceased. ;;
    The Bill stated;, that James Patton, grandfather df the plaintiff Mary, departed this life about the-'year 1755, having first-duly made his last Will, by which he devised certain lands to be sold for the benefit of his two grandchildren James Thompson, and Mary Buchanan the plaiutiff; among which was an Entry lying on the North side of James Eiver, in the new County of Bote-tourt, which, after the death of the said testator, was patented in the names of John Buchanan and William Thompson his executors, as joint tenants of the legal title; that, his debts not requiring a sale of this tract of land, it was agreed by the said Executors, that the land should not be sold, but should itself remain the property of the devisees according to the directions in the Will; that an instrument of writing was executed to that effect, which was afterwards lost: — that, about the year 1769, the said John Buchanan died, whereby the legal title became vested in William Thompson as the surviving joint-tenant, who died intestate, after the first day of January 1787, leaving a number of children; that the land was not taken into possession either by the said Thompson who had the legal title, or by those who had the equitable interest: — that, about the year 1774, a certain David Smith, with a full knowledge of the right which the representatives of James Patton had to the land in question, made a survey including the said land, obtained a patent, and afterwards sold the same to the defendant James Hamilton, who had also knowledge of the said pre-existing right, and purchased at his own risk: — ■ that a suit at law was brought by the plaintiffs in the District Court held at the Sweet Springs, against James Hamilton, to recover the said land; but their Counsel having brought the suit in ->Lthe names of the representatives of John Buchanan and William Thompson jointly, it appeared at the trial that the legal title was in the representatives of the latter solely, and the cause went off on that point: — that, during the pendency of that suit, a survey was directed by the Court, and, on the said survey being executed, the depositions of William Bilbro and William Dempsey, (both of whom had since departed this life,) were taken at the house of the said James Hamilton and in his presence, and filed as evidence in said cause: — that the only defence set up by Hamilton, was that the identity of the land was not sufficiently established, altho’ he knew, when he purchased, that the land was covered by Patton’s claim, and himself had since defaced or destroyed some of the boundaries or line trees.
    The plaintiffs prayed, that copies of the depositions of Bilbro and Dempsey, therewith exhibited, be read on the hearing; that^a division of the land be directed,' and a conveyance of a moiety thereof to the plaintiffs; and for general relief.
    The defendant Hamilton, by his answer, .denied the equity of the Bill, and demanded proof.of most of the allegations, contained in,it,; relying also on his legal title under Smith’s patent, and long possession of the laml.'.p The plaintiffs replied generally; sundty depositions and exhibits were filed; and' the cause was set for hearing as to Hamilton; without the - service of process upoq a'&y of the other defendants. Upon his ; 'detírth, it was afterwards revived agaiásí his: heirs. ,
    Chancellor Brown was of opinion, “that the plaintiffs had not entitled themselves to have read, as evidence on the trial of this cause, the depositions of William Bilbro ,and William Dempsey, (if for no other season,) because it was not sufficiently shewn that those depositions were regula'rly taken in the cause at law in which'they were filed; that, if they could be read," yet'the plaintiffs could not have succeeded in identifying the land which they claimed, and which was in the possession of the said defendant, or, in shewing any title thereto; but, if the plaintiffs had identified the *laud which they claim, to the satisfaction of the Court, and shewn that it was embraced in the grant under which they claim, yet they could not have succeeded in this cause; being only equitable claimants, and required to make out a fair title to the equitable interposition of the Court, before they would be suffered to disturb the heirs of Hamilton whose legal title had been accompanied by a long possession: — that a fair title Was not made out in this case; for, amongst other objections to the plaintiffs’ claim, there was no evidence of an Entry to support the Grant to Patton’s executors; and an entry was as necessary, in 1753, to justify a survey and authorise a Grant, as it has been since the Act of 1779; nor ought the Court, in favour of one seeking to disturb a possessor of so many years, to presume an entry, without some circumstances other than length.of time to justify it; much less ought ⅜⅜ be presumed against circumstances. The Court therefore, if called upon by it’s duty to decide this cause finally betweenfthe plaintiffs and the heirs of Hami|ton, would certainly decide it against the plaintiffs; but considering them as coming here, under their equitable claim, to obtain a conveyance from the other defendants the representatives of Thompson,' and considering a Court of law a more proper tribunal to decide on the admissibility of the depositions aforesaid, and on the identity of the land, the Court, dismissing the Bill, with costs, as to Hamilton’s heirs, will retain it against the other defendants; and, when they are properly before the Court, will decree a conveyance against them, unless they can gainsay the plaintiffs’ claim; and will then leave the plaintiffs at liberty, if they choose it, to pursue their remedy at law against the heirs of said Hamilton.”
    The decree therefore was, that the Bill be dismissed as against Hamilton’s heirs, with costs; but without prejudice to any suit at law which the plaintiffs might thereafter institute against them for the recovery of the land in controversyfrom which decree the plaintiffs appealed.
    '""Wickham for the appellants.
    Heigh for the appellees.
   The following was the Court’s opinion.

The Court is of opinion that there is error in the Decree dismissing tine Bill in this case as to the heirs of Hamilton :■ — first, because such decree would not be binding on James Thompson the co-devisee of the female plaintiff, until he was before the Court; and, secondly, because the non-production of the Entry in this case, was not a sufficient ground whereon to refuse the aid of the Court, if it had appeared that the Hand in controversy was covered by the patent under which the appellants claim ; which ought to have been enquired into by an issue directed for that purpose. With respect to the depositions of the witnesses Bilbro and Dempsey, the Court gives no opinion at present, inasmuch as the case may be changed in the Court of law before whom the issue may be tried.

The Decree is therefore reversed, with costs, and the cause remanded, to be proceeded in ; to a final decree, agreeably to the above principles.  