
    Stott and Others v. Baskerville and Others.
    Decided, Nov. 5, 1817.
    i. Appellate Practice — Detective Bill — Dismissal without Prejudice.• — where the Bill In Chancery is defective, not only for want of proper parties, but in other respects, so that no decree for the plaintiff can be entered, a decree dismissing- the Bill altogether, ought tobe affirmed:- but, if it appear probable that something might be recovered upon a new bill properly drawn, such affirmance should be without prejudice to any other suit the plaintiff may be advised to bring.
    The appellees as co-heirs of William Kennon, filed a Bill in the Superior Court of Chancery for the Richmond District against Baskerviile and others, stating that Kennon, in December 1767, executed a deed of trust to Baber and others, upon certain property, including a tract of land called the Copper Mine tract, of 4800 acres, in Buckingham, which was, afterwards, in May 1790, re-surveyed and patented to the said Baker and others, for the purposes of the deed of trust; by the terms of which, the said tract of land was not to be resorted to, unless absolutely necessary;— that it was not necessary to resort to the said land, which had descended to the complainants as co-heirs of Kennon; that Baskerviile and others had, upon pretences unknown to the complainants, taken possession of sundry parts of the land; and therefore the prayer of the Bill was to recover the possession ; for an account of the profits; and for general relief.
    The defendants by their answer excepted to the jurisdiction of the Court, because the matters in the Bill were cognizable at law; and also claimed the land as purchasers, without notice, from William Gad-berry, to whom it was patented, June 25th, 1787.
    It appeared by Exhibits, that a Patent for the Eand actually issued to Gadberry on that day; and that the defendants *had deeds from him : that the survey, for Baker and others the trustees aforesaid, was made in June 1788, and the Patent to them issued May 15th 1790, reciting, “that James Christian had made a survey of 5100 acres, which William Ken-non had caveated, and obtained, on the 6th of June 1768, a judgment of the Council in his favour, with an order that a patent should issue to him.”
    The deposition of John Patterson, Surveyor of Buckingham, proved, that he surveyed the land for Gadberry, some years past; and, at that time, Gadberry and Baskerviile informed him it was called Kennon’s Mine Tract.
    A Memorandum from the Eand Office was produced in the following words. “6 June 1768. Grant to Win. Kinnon Bands now in Buckingham. Find no grant in the name of Wai. Kennon from 1764 to 1774. John Davenport, Clerk.”
    Chancellor Taylor dismissed the Bill; and the plaintiffs appealed.
    Call for the Appellants. —
    The .decree is erroneous, 1, because the judgment on the Caveat, and the Deed of Trust, (which was duly recorded,) were implied notice to Gad-berry and those who purchased under him ; and therefore the patent to him, and the deeds to the persons who purchased under him, were void against Kennon and his heirs; — and 2, because the name, and general notoriety of the land, were likewise notice, which affected Gadberry and the purchasers from him.
    In Norveli v. Cama and wife, 2 Munf. 257, it was decided that the inchoate right to a Patent, obtained by a decision in favour of a Caveator, is not barred by length of time.
    Wickham contra.
    This case presents no real difficulty. The circumstances are stronger in favour of the appellees, who claim by the prior patent, than those by which such patent prevailed in Noland v. Cromwell. 4 Munf. 155, and Gooseman v. Martin, Ibid. 533.
    Such a Bill as this of the appellants, can furnish no foundation for a decree. — There is no allegation that Kennon ever was in possession, or that he, or any claiming under him, ever set foot on the land. When Gadberry made his entry, it appeared waste and unappropriated. *How was he bound to take notice of the proceeding before the Council, upon Ken-non’s Caveat against Christian in the year 1767? — If he was so bound, was not Kennon equally bound to take notice of Gadberry’® proceeding to get his patent? — -He should have caveated him, according to the decision in Noland v. Cromwell. — Even if Gad-berry had known of the judgment m 1767, he had reason to believe the claim abandoned, since Kennon had taken no steps to get a grant, and had not taken possession ; —-but if he had notice, the present appel-lees are entitled to protection ; they being purchasers without notice.
    In Norveli v. Camm, there were various features distinguishing that case from this; particularly, • continued possession by the party in whose favour the old judgment was.
    Another defect in the Bill is, that the Trustees are not made parties. This in fact is nothing more than an Ejectment brought in Chancery by the cestuy que trust against a third person, praying that he may be turned out of possession ; — al-ledging satisfaction of the Deed, and a resulting trust in favour of the plaintiff. Surely the suit should have oeen against the Trustees.
    Different parcels are held by different defendants : — yet, by this proceeding, they are all joined in one Ejectment, and made to defend each'other’s titles. — This too is wrong.
    Wirt in reply.
    This is not an Ejectment in Chancery. The legal title was in the trustees, not in the complainants, who therefore could- not bring Ejectment, but were driven to a Court of Equity for relief. If proper parties were not made, the chancellor should not have dismissed the Bill, but granted leave to amend it; whereupon, if such amendment had not been made, the Bill might then have been dismissed.
    The cases of Noland v. Cromwell, and Gooseman v. Martin, did not relate to ancient claims under Orders of Council, but only to claims under the Land Law of 1779. • — -The Orders of Council were kept alive by Acts of Assembly, repeatedly, giving time to make surveys upon them. Gadberry therefore had no right, by his Entry, to prevent the appellants from getting the advantage intended *for them by those Acts. It is evident that, when he made that Entry, he knew of Kennon’s previous right, and ought to have given him, or his heirs, notice; if which had been done, a Caveat might have been filed.
    The Memorandum from the Land Office seems to imply that a Grant was issued to Kennon, which now cannot be found.
    The Decree ought to be reversed, and cause sent back, for new parties, and, I hope, with leave to make other amendments to the Bill.
    Wickham. Where the statements in the Bill are so defective that the Court cannot decree upon it, such defect is not cured by the additional defect of the want of proper parties. The Court should affirm the decree, because the Bill was properly dismissed : — but the course in such case is, that if it appear probable that something may be recovered, by a new Bill stating the case properly, the Court will add a clause declaring, that such affirmance shall be without prejudice to any new suit that may be brought to recover the property in controversy.
    
      
       The principal case is cited with approval in Locltridge v. Sharrot, 5 Leigh 381; Handly v. Snod-grass, 9 Leigh 493.
    
   JUDGE ROANE

pronounced the Court’s opinion.

On consideration of this case, the Court is of opinion to affirm the decree: — but this affirmance is to be without prejudice to any other suit the appellants may be advised to bring.  