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Court in this cause be, and the same is hereby Crutcher and John Tibbs enter ten thousand reversed with costs; and that this cause be, acres of land on a treasury warrant, No. 18,and the same is hereby remanded to the said 747, as tenants in common, beginning at a Circuit Court, with directions to proceed there- large black ash and small buckeye, marked in according to law and justice, and in con- thus, J. T., on the side of a buffalo road, leadformity with the opinion of this court. ing from the lower Blue Lick, a N. E. course,

and about seven miles N. E. and by E. from
the said Blue Licks, to a corner of an entry of

twenty thousand acres, made in the name of 156") *AMBROSE WALDEN et al., Appel. John Tibbs, John Clark, John Sharp, David lants,

Blanchard, and Alexander M’Lean, running

thence with the said Tibbs & Co.'s line due HENRY I. BODLEY, Appellee. east, one thousand six hundred poles; thence Chancery practice-amendment-second bill—south, one thousand poles; thence west, one landlord and tenant-relief granted not spe thousand poles, to the beginning, for quantity,

thousand six hundred poles; thence north, one cially asked for.

*That in 1790, a legal survey having |* 157 There are cases in chancery where amendments been executed, a patent was obtained in the are permitted at any stage or progress of the cause,

names of Robert Rutherford, assignee of Henry as where an essential party has been omitted ; but amendments which change the character of the bili Crutcher and Willoughby Tibbs, heir-at-law of or answer, so as to make, substantially, a new case, John Tibbs, deceased, in 1790. That by several should rarely if ever be admitted, after the cause

mesne conveyances the above tract was vested has been set for hearing; much less after it has been heard.

in the complainants. A decree dismissing a bill in chancery, generally, The complainants represent that Ambrose may be set up in bar of a second bill; but wbere Walden, the defendant, on the 22d May 1780, the bill has been dismissed on the ground that the entered one thousand three hundred thirty. court had no jurisdiction, which shows that the merits were not heard, the dismission is not a bar three and one third acres of land on the east to a second bill.

side of Jacob Johnson's settlement and preWhere parties by agreement dispense with the usual formalities, and no injustice results from the emption, on the waters of Johnson's Fork, a mode adopted, the court should not on slight branch of Licking, to include two cabins on ground set aside the proceeding. It is a general rule that a tenant shall not dis Butler; and to run eastwardly for quantity.

the north side of said Fork, built by Simon pute his landlord's title ; but this rule is subject to certain exceptions. If a tenant disclaims the ten. This entry was surveyed the 29th November, ure, and claims the fee in his own right, of which 1785, after which a patent was obtained. the landlord has notice, the relation of landlord

The bill charges that this entry and survey and tenant 18 put an end to, and the tenant be. comes a trespasser; and he is liable to be turned are void for want of certainty, etc. And that out of possession, though the period of his lease is Lewis Craig purchased of Simon Kenton, who not expired. The same relation as that of landlord and tenant

was the locater, and claimed one third of the subsists between a trustee and a cestui que trust, land entered for his services; which, being laid as it regards the title.

off, Craig sold several small tracts by metes A court of equity cannot act on a case wbich is and bounds, to Jonathan Rose, William Allen, not fairly made out by the bill and answer. is not necessary that these should point out, in de and Charles Rector. That Rose sold a part of tail, the means which the court shall adopt in giv. his purchase to Abraham Shockey; and Allen ing relief. Under the general prayer for relief, the court will often extend relief beyond the specific

a part of his to Amzey Chapin. prayer, and not exactly in accordance with it. And that Walden, alleging he had satisfied Where a case for relief is made out in the bill, it the claim of Kenton as locator, commenced may be given by imposing conditions on the complainant, consistently with the rules of equity, in

two actions of ejectment in the District Court the discretion of the court.

of the United States for Kentucky, and ob

tained judgment against the purchasers under Nappeal from the Circuit Court of Craig. That tucky.

from Allen and Rose, was inferior to that of This case was submitted to the court by Mr. the complainants, became their tenants. That Underwood for the appellants, and by Mr. Crit-on the 30th October, 1801, the complainants tenden for the appellees, on the argument in entered into an agreement with Lewis Craig, the preceding case of Walden v. Craig's Heirs with the assent of Rose and Rector, for the et al.

land they had purchased, and deeds were made Mr. Justice M'Lean delivered the opinion of to them by the complainants. Shortly after the court:

this, Allen sold his land to Abraham Drake, This is an appeal from the decree of the to whom the complainants made a deed. Circuit Court of Kentucky.

That the complainants, Bodley and Pogue, Bodley and others filed their bill in the Cir. purchased Shockey's claim to the land he had cuit Court, representing that on the 17th of bought of Rose, and on which he had erected Autober, 1783, an entry was made in the name

a valuable mill. And that they still held the of Henry Crutcher and John Tibbs for ten legal title to that, and the land purchased by thousand acres of land, as follows: Henry Chapin of Allen, and to a considerable part

of the interference of their claim with Wal. NOTD.-That tenant, or one holding onder him, den's. cannot dispute landlord's title; and as to dis. claimer by tenant of landlord's title, and the effect

That twelve years after Walden obtained his thereof, see note to 7 L. ed. U. 8. '596 ; 21 L. ed. judgments he issued writs of habere facias, U. S. 779.

which were set aside on the ground that the Right of tenant who was in possession before demises had expired. That in 1824, the de. taking lease, to dispute the lessor's title, see note to 1 L.R.A. (N.8.) 1181.

mises were extended, without notice to the

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tenants, fifty years. That Rose, Rector, and cause was entered upon the docket for further Allen, and those claiming under them, had proceedings in this court. And that in the suits possession of their respective tracts of land by for trial, Thomas Bodley et al. v. Ambrose Wal. metes and bounds, as purchased from Craig, den, and Clark's Heirs v. Ambrose Walden, and and held under the title of Bodley and Com- also the one by Duncan's Heirs v. Walden, pany, for more than thirty years, adversely should be entered on the docket, and stand to Walden. That Shockey and Chapin, and for hearing at the ensuing term, and be decided those holding under them, have had possession at the same time; they all being connected for near the same length of time, etc.

with the present controversy." The complainants state that Walden never Bodley and Pogue having died, at Novemhas had possession of any part of his survey, ber Term, 1833, by consent, the suit was reexcept two hundred acres conveyed by him to vived in the names of their heirs and repreRobert Pogue, by proper metes and bounds; sentatives; and a guardian ad litem was ap158"] about one hundred "and fifty acres of pointed to certain infant heirs. which was held by Carter: and that the com- *A motion is made by the defendants (*159 plainants have made valuable and lasting im- in the appeal, to dismiss it, on the ground provements on the land, for which they re- "that it is an appeal from several distinct dequire pay, if the title should be found in Wal- crees, in several separate suits, which are atden.

tempted to be united in this appeal; when there And they pray an injunction, etc.; which was is no such record filed as is described in the granted.

appeal and citation thereon." The complainants afterwards amended their In the decree of the Circuit Court, it is bill by stating that Thomas Bodley and Robert stated that by consent of the parties, the suits Pogue, at the Fleming Circuit Court of Ken. above named were to be heard at the same tucky, in March, 1825, in a suit in chancery time; and the papers and pleadings filed in one against the unknown heirs of John Walden, case should be considered and have full effect deceased, and others, obtained a decree for the in all the cases, to enable the court to decide whole of Ambrose Walden's survey, except the the controversies in all the cases on their reone hundred and fifty acres owned by Carter; spective merits.” And it was expressly agreed and except so much of John Walden's elder that the bill, answers, and orders, the entries, survey of one thousand six hundred sixty-six surveys, and patents, in the case of Bodley and and two thirds acres, as was then in the po8Pogue should be sufficient, without recording session of Ann Thrailhild, and the heirs of the whole suits and papers in each of the Jeremiah Proctor, deceased.

cases; and that in the event of either party And the complainants further state that the appealing, the clerk may copy all the papers in tract of one thousand three hundred and thirty: all the records; and that when they are so three and one third acres of Walden, interfered copied and certified, the transcript shall have with an entry of twenty thousand acres, made the same effect as if there were full and sepathe 31st July, 1783, in the name of John rate records made out in each and all of the Tibbs, John Clark, John Sharpe, David Blan- cases: and this agreement was declared to be chard, and Alexander M'Lean, with the proper entered into, with the leave of the court, to surveyor; sixteen thousand acres of which was avoid expenses in the cases, as they all involve surveyed and patented in the name of the the same questions." complainant Bodley; and this entry is charged These agreements cover the apparent irreguto be paramount to that under which Walden larities in the record, as it regards the decrees claims.

and the proceedings in the different cases Walden, in his answer, states that he ob- stated, and obviate the objections on which the tained judgments against the complainants, motion to dismiss is founded. who are tenants on the land, by virtue of his And a further motion is made to dismiss the legal and better title; and that he has been a appeal as to all the parties named in the citalong time delayed by the complainants from tion, who are not parties to the decrees. obtaining the possession of the land recovered. The names in the citation are found on the

He admits that some improvements have record, as parties to one or more of the several been made upon the land; but alleges that decrees entered. It is very clear that the parwaste has been committed, and that rents and ties to the decrees only can be made responsiprofits would more than compensate for the ble for the costs of this appeal. improvements. He states that he brought his Before the decrees were pronounced in the suit in ejectment shortly after the adverse pos. Circuit Court, by consent of the parties, it was session was taken; and he relies upon the dis- entered upon the record that every agreement missal of certain injunction bills filed by the or admission on file, for the preparation of any complainants, as a bar to the present suit. He knows nothing of the entries, surveys, to all of them.

one of the cases for hearing, shall be extended

And it was admitted that and patents, set forth in the bill, or of the the complainants were respectively invested sales and conveyances stated; and he requires with all the titles under the entries of Peter proof of the same. He insists on the validity of his own entry; and denies that Kenton, as Johnson and Tibbs, and Clark and Tibbs, and locator, was entitled to any part of it, as he Crutcher, as alleged in their several bills. And was paid in full for his services in locating it was agreed “that the court should give a the land. He denies all fraud, and prays the final decree, without further ascertainment of benefit of his judgments at law.

the boundaries or positions of the particular By agreement of the parties in the Circuit tracts or settlement of each claimant or person Court, "the record and proceedings of the interested; and that the principles thereof shall Fleming Circuit Court were filed, and that I be carried into effect as fully as if each tenement and each proprietor were specially named ly a new case, should rarely, if ever, be admitand identified."

ted after the cause has been set for hearing, The entries involved in this proceeding were much less after it has been heard. brought before the court in the case of Bodley On the part of the appellant, it is contended et al. v. Taylor, 5 Cranch, 191, and in their that the first and second injunction bills which decision, in regard to Walden's entry as well as were filed in this case, before the present one, the others, the Circuit Court followed the de- and which were dismissed, constitute a bar to cision of this court.

the relief sought by the present bill. It is true, the validity of these entries is *The controversy in this case, by (*161 brought before the court now by different par. various causes, has been protracted more than ties; and the former decision having been made forty years. The judgments in the ejectment between other parties, and on a state of facts cases were obtained in 1800. In the same year. 160*) somewhat different from that now be- and shortly after the judgments were rendered, fore us, does not settle conclusively the ques. Bodley, Hughes and others, obtained an in. tion in this case. But in looking into the evi-junction. This bill was dismissed by the court dence, it is found that the controlling call of in 1809, for want of jurisdiction. Walden's entry is proved by Kenton and oth- In 1811, another bill was filed, on which an ers; and that the effect of this evidence is not injunction was allowed; and which, at May Bhaken by the testimony on the other side. The Term, 1812, was dissolved. The bill was aftercalls of the entries are specific and notorious. wards dismissed, by the complainants, at rules, Indeed, there seems to be little or no contest in the clerk's office. On the dissolution of this between the parties on this ground; nor as to injunction, writs of habere facias possessionem the survey of Walden's entry, as directed by were issued for the first time; and these, after the Circuit Court.

being stayed by order of the judge, were This entry being older and paramount to the quashed at July Term, 1813, on the ground other conflicting entries, it was held to be good: that the demises had expired. but as the subsequent entries were made before The demises were laid, commencing in 1789, Walden's entry was surveyed, it was, very for ten years; so that they had expired before properly, directed to be surveyed strictly in the judgments were obtained. conformity to its calls.

In 1817, a motion was made to extend the This mode of survey reduced the claim of demises, which was overruled. But the quesWalden several hundred acres below the call tion was brought before this court, which deof his original survey. And for the land lying cided they had no jurisdiction of the case, but outside of this last survey, and within the gave an opinion favorable to the amendment; original one, the Circuit Court decreed that he which induced the Circuit Court, in 1824, to should relinquish the possession, and release to extend the demises to fifty years. the complainants, respectively, by metes and In tne year 1825, the present bill was filed, bounds stated, the tracts covered by their titles. on which an injunction was issued to stay pro

Commissioners were appointed to ascertain ceedings on the judgments, which was the value of the improvements made by the tinued until the final decree of the Circuit tenants on the lands recovered by Walden; the Court. value of the rents and profits; the value of the As the first bill was dismissed for want of land without the improvements; and whether jurisdiction, and the second by the complainwaste has been committed, etc. A report was ants, at rules, in the clerk's office, it is clear made by the commissioners, which, on motion that neither can operate as a bar to the present of the complainants, was set aside, and another bill. A decree dismissing a bill generally, may order to the commissioners was made. And be set up in bar of a second bill, having the afterwards, no steps having been taken by the same object in view; but the court dismissed complainants to execute the order, the injunc- the first bill on the ground that they had no tion was dissolved, without prejudice to the jurisdiction, which shows that the case was not complainants, for any claims they might have heard on its merits. And this also appears for improvements; but the court refused to de- from the dismissal by the party of the second cree releases from the tenants to Walden of bill in the clerk's office. their claim; and also to order a writ to the It is also insisted that the decrees of the Cir. marshal, directing him to put Walden in pos- cuit Court should be reversed, on the ground session of the land recovered.

that there is an improper joinder of parties. The Circuit Court, it appears, after the final Were it not for the agreements on the record, decree was entered, set it aside at the same the decrees entered in the different cases would term, and entered decrees in each of the cases. be wholly irregular, and, of course, unsustainAfter the original decree was set aside, and be able. Different interests and parties are united, fore separate decrees were entered, the defend and a decree is made in each case, which de. ant moved the court for leave to file several an- termines the matters of controversy in each. swers to the cases placed on the docket by But the agreement of the parties spread upon agreement, and also a cross bill; which the the record, and that which is stated by the court refused. And we think that this appli- court, and the fact of all the causes being cation to change the pleadings after the hear: brought to a hearing and submitted at the ing, and under the circumstances of this case, same time, afford the most satisfactory eviwas very properly rejected.

dence of the assent of the parties, and the There are cases where amendments are per. waiver of all objection to the irregularity of the mitted at any stage of the progress of the case; proceeding. And we are inclined to this view, as where an essential party has been omitted; from the consideration that by this mode of but amendments which change the character procedure, the rights of the parties concerned of the bill or answer, so as to make substantial. I could in no respect be prejudiced. They were

CON

as susceptible of as distinct an investigation|try, under the circumstances of this case, does and decision as if the pleadings had been fully not preclude the complainants from (*168 made up in each case, and it had been heard relying on the adversary titles set up in their separately.

bill. Whether any other effect may result from Where parties by agreement dispense with this entry, as it regards any other right than the usual formalities in the progress of a cause, the title asserted in the bill, we do not decide. and no injustice results from the mode adopt- The counsel for the appellant contend that 162*) ed, *the court should not, on slight the decree of the Circuit Court should be reground, set aside the proceeding.

versed, on the ground that, although Walden It is contended that as the complainants, or was decreed to release his title to such parts of at least some of them, entered under the title land covered by his original survey, and not of Walden, as purchasers from Craig, the included in the survey of his entry under the principle of landlord and tenant applies; at order of the court, yet the tenants on the land least so far as to prevent the setting up of a to which Walden had the better title were not title adverse to that under which they entered. required to execute releases of their title to

Craig claimed a certain part of the entry of him. Walden, as purchaser under Kenton, the lo- But we think there is no error in the decree cator; and he sold to some of the complainants: in this respect. but as his title was not sustained, the purchas. Walden had the elder legal title for the land ers under him became interested in the entries included in his first survey; it was therefore of Bodley and others, and received convey necessary to decree a conveyance or release ances from them.

from him to the tenants who established a parIt is a general rule that a tenant shall not amount equitable title. But as to the land dispute his landlord's title; but this rule is sub- within the corrected survey, he had the elder ject to certain exceptions. If a tenant dis equitable as well as legal title; it was therefore claims the tenure, and claims the fee in his own | unnecessary to decree releases from the tenants, right, of which the landlord has notice, the re- who, from facts before the court, had neither lation of landlord and tenant is put an end to, the equitable nor legal title. and the tenant becomes a trespasser, and he is There are other considerations which show liable to be turned out of the possession, though the correctness of the decree in this respect. the period of his lease has not expired. 3 The tenants in possession were not parties to Peters, 47. The same relation as that of land- the suit, and the court did not know the nature lord and tenant subsists between a trustee and or extent of their right. It was clear, that 80the cestui que trust, as it regards the title. In far as their right was made known to the court the case of Botts v. Shields' Heirs, 3 Lit. 34, by the bill and answer, they had no title to re35, the Court of Appeals decided that a pur. | lease. Not being parties to the suit, it is very chaser of land who enters into the possession clear that the court could not devest them of of it under an executory contract, shall not set any interest which was not devested, as a legal up another title. But a purchaser who has ob- consequence of the recovery of the ejectment tained a conveyance, holds adversely to the suits. vendor, and may controvert his title. 4 Litt. Forty years have nearly elapsed since Walden 274.

recovered his judgments. Delays, perhaps It appears from Kenton's deposition, that he without precedent in this country, have ocwas paid in land warrants for making Walden's curred in realizing the fruits of these judgments. entry, and that he had not, in fact, a shadow To some extent, these delays may be attributed of right to any part of this land. He assigned to the expiration of the demises; but they are the contract with Walden to locate the land to chiefly to be ascribed to the injunctions which Fox and Wood; and afterwards paid them in have been granted. And the demises, discharge of this contract, by a conveyance of though extended fifty years from 1789, have land, located by the land warrants received again expired. from Walden; but the contract was not sur- And it appears from the records in the ejectrendered nor cancelled. So that Craig, as pur- ment cases, which are before us as evidence, chaser, procured neither the equitable nor legal that the decease of some of the defendants rentitle to any part of the land in Walden's entry. ders a revivor of the judgments necessary be.

The claim of Craig appears to have been pur. | fore writs of possession can be issued. chased by Bodley and others, who at the time When the final decree was entered in the claimed under conflicting and adverse entries Circuit Court, the demise had some years to to that of Walden, with the assent of the first run; and that court, we think very properly, purchasers from Craig, and then deeds were refused to decree a surrender of the possession executed to them.

by the tenants to Walden, but dissolved the inThe original purchasers from Craig, who af. junction. This, under ordinary circumstances, terwards received deeds from Bodley and oth would have given to Walden all the relief ke ers, are deceased; and the lapse of time and could ask; and, as was said by the counsel for change of circumstances have been so great the complainants, all the relief he prays for in that we do not think the complainants, or any his answer. But new and unexpected delays part of them, can be precluded on the ground have occurred, until the demises have expired; of their purchase from Craig, from setting up and the judgments have become dead by the a title adverse to that of Walden's. The per- decease of a part of the defendants. sons who entered under Craig were in fact, tres- And a question here arises, whether, on the passers; for they had no title which could pro- affirmance of the decrees of the Circuit (*164 tect their possession, or shelter them from the Court, it is not the duty of this court, under consequences of wrong.doers. But on this point the circumstances of this case, to direct the Cirwe go no further than to say that such an en- 1 cuit Court to have the value of the improve

now

ments estimated, the rents and profits ascer are not before us, nor the necessary facts, wo tained, and also any damage which may have do not decide on such title or claim. been done to the land; and then, under an order or decree that the tenants should relinquish

This cause came on to be heard on the tran. the possession to Walden, to issue a writ of script of the record from the Circuit Court of possession, in pursuance of the practice of a and was argued by counsel; on consideration

the United States for the District of Kentucky, court of chancery in Kentucky.

This in effect would be the same as the de- whereof, it is now here ordered, adjudged and cree of the Circuit Court; and it would seem

decreed by this court, that the decrees of the that it is the only effectual mode by which this said Circuit Court in the cases stated by the protracted controversy can be terminated with said Circuit Court be, and the same are hereby in any reasonable time. The remedy at law is affirmed; with the modification, that this cause obstructed by the expiration of the demises, be, and the same is hereby remanded to the and the death of defendants in the judgments? said Circuit Court, with directions to that And if this court have the case before them so

court to take such further steps in regard to as to send it down with the above directions, den or his representative in possession of the

the improvements, and to the putting of Wal. we think they are bound to do so. It would be a reproach to the administration of justice, if premises recovered in the ejectment suits, as in this case the parties should be left by the shall be conformable to the decrees hereby ex. decision of this court, apparently, as remote firmed, and to the principles of equity. from a final determination of it as they were forty years ago. It is true, the answer prays merely for a dis

*JEFFERSON L. EDMONDS solution of the injunction, and that the bill may

(*166 be dismissed. But the court have, by the bill,

et al., Appellants, answer, and evidence, the equities of the par

ANDERSON CRENSHAW, Appelleo. ties before them; and having jurisdiction of the main points, they may settle the whole matter. Rights and liabilities of co-executors. A court of equity cannot act upon a case which is not fairly made by the bill and answer. But clear that each has a right to receive the debts due

Where there are two executors in a will, it is it is not necessary that these should point out, to the estate, and all other assets which shall come in detail, the means which the court shall adopt into bis hands; and he is answerable for the assets in giving relief. Under the general prayer for right to receive, and the nature of the trust. A relief, the court will often extend relief beyond payment of the sums received by him to his cothe specific prayer, and not exactly in accord- executor will not discharge him from his liability ance with it. Where a case for relief is made which come into his hands, and to appropriate

He is bound to account for all assets in the bill, it may be given by imposing condi- them according

to the directions of the will. tions on the complainant consistently with the

Executors are not liable to each other: but each rules of equity, in the discretion of the court. full extent of the funds received by him.

18 liable to the cestuis que trust and devisees, to the In their decree the Circuit Court required The removal of an executor from a State in Walden to surrender the possession of the land which the will was proved, and 10 which

letters he was directed to release to the complainants, from his liability as executor; much less does it and the court had, unquestionably, the power release him from his liabllity for assets received to decree a surrender of the possession to Wal- by him and paid over to his co-executor. den, by the tenants of the land recovered by him. This was not done, it is presumed, be- TO Numappeal from the Circuit Court of the

United the cause it was thought the possession could be obtained under the judgments, on the dissolu.

Alabama. tion of the injunction. But this, for the rea

The appellee, with one James M’Morris, was sons stated, cannot now be done. The remedy by the will of Aaron Cates, of South Carolina, under the judgments, as they now stand, must made on the 8th day of February, 1816, and be attended with additional expense and delay; proved on the 15th of the same month, appointand having the case before us, we think it is ed executor of the will

. Letters testamentary our duty to put an end to this controversy.

were granted to both the executors.

The will directs the estate of the testator to Forty years ago Walden recovered the land by virtue of his legal right; and we now decide be sold; and after the payment of the debts, in favor of his equity. He should, therefore, directs the executors to invest the residue of have the aid of the court in attaining the ob- the proceeds of the estate in stocks, for the ject he has so long and 80 perseveringly pur. who are appellants in this case.

benefit of certain persons named in the will, and sued, and that without unnecessary delay. Being satisfied with the decrees made in the

The estate was sold, and the accounts were cases stated by the Circuit Court, they are af. settled by the executors with the ordinary. firmed with the following modification: The The executors failed to invest the proceeds of cause will be sent down to the Circuit Court, the sales in stocks. This bill was filed to com. with directions to take such steps in regard to pel a performance of the directions of the will 165*) the improvements, and to the putting of by the appellee. Walden or his representative in possession of

The defendant, in the Circuit Court, stated the premises recovered in the ejectment suits, in his answer that the moneys of the estate as shall be conformable to the decrees affirmed, were not invested in stocks in consequence of and the principles of equity.

executors and administrators, And as it regards any title or claim which the when llable for each other's acts, see note to 8 L. tenants or any part of them may set up under ed. u. 8. 522.

As to liability for delivery of assets to co-ex. the statute of limitations, as the proper parties / ecutor, see note to 11 L.R.A.(N.8.) 312.

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