1810. Green V. Price. The 2d of March following the plaintiff paid Littlepage a farther OCTOBER,, sum of 26/. 9s. for which he gave a receipt "promising to account for it in the same manner as for the 100%. received of him the last month on account of Robert Bumpass;" and signed "Richard Littlepage for Robert Bumpass and self." A farther payment of 8. was made the 11th of July, and a similar receipt taken: and on the 20th of May, 1799, the said Littlepage, by a writing under seal, obliged himself, his heirs, &c. " that the balance of the money due him from Fortunatus Green, for the land whereon he lived, should remain in the hands of the said Green until he the said Littlepage should satisfy the amount of three executions which had been paid for him by the said Green." It was fully proved, that, at the time the deed was executed from Bumpass to Littlepage, a witness advised the plaintiff, (who it seems was present,)" that it would be best for him to take the deed from the said Bumpass in his own name," whereupon the said Littlepage observed "that, if the right should be made to him, it would put it out of the power of Ferguson ever to make the plaintiff a right; and that it would enable the plaintiff to recover three or four hundred pounds as damages of the said Fergu son; and that he would get his land clear;" to which arrangement the plaintiff assented. It was further proved that, by the contrivance of Littlepage, and with the assent of the plaintiff, a declaration in ejectment was served upon the latter; the lawyer's fee for which appears to have been paid by the plaintiff to Littlepage; to whom he sur rendered the possession of the land, and immediately resumed it as his tenant; agreeing to pay ten dollars a year rent, as long as he should remain on the land; that Littlepage afterwards declared that, after recovering the land by law of the plaintiff, he had sold it to him for a certain sum of money, and for the benefit of his claim against Ferguson; which sum of money and claim were understood, by a witness who stated what Littlepage said, to be in full discharge of the contract between them for the said land. What became of the claim upon Ferguson does not appear in the record; but after all these transactions, (of which it does not appear that Thomas Price had any notice,) upon a settlement of accounts between the said Price and Littlepage, on the 17th of February, 1801, a balance of 156l. 28. 3d. 1-2. being due from 1810. Green V. Price. OCTOBER, the former to the latter; and it being proposed that that balance should be taken by Price upon the plaintiff, the plaintiff readily agreed to it, (acknowledging himself to be still indebted to Littlepage, for and on account of the same land,) and expressed great satisfaction (at that time, and repeatedly afterwards) at this arrangement. A contract was then made between Price and the plaintiff, that Price should take in payment, his produce, at the highest Richmond cash price; that the plaintiff should do a job of brick-work towards payment of the debt, and that Price should let him have certain articles of the grocery kind for the use of his family at the Richmond cash price.* By a writing, dated the same day, (to which the plaintiff appears to have been privy, without making any objection,) Littlepage "obliged himself, whenever called upon by the said Price, to give him an instrument of writing vesting him the said Price with all the rights and immunities that he the said Littlepage holds in the 200 acres of land on which the aforementioned Fortunatus Green now lives; which right the said Price is to hold until the above-mentioned sum (of 156l. 2s. 3d. 1-2.) with the interest accruing, is fully paid." The first of March, 1801, a mortgage on the said 200 acres of land was given by Littlepage and wife to Price, to secure the payment of the same sum of money, with interest, and proved in Court by one witness, the 21st of May following; but does not appear to have been fully recorded. A bill to foreclose that mortgage was filed in Hanover County Court against the children of Richard Littlepage, without making Fortunatus Green a party, and a decree for the sale of the mortga *Note. It is alleged in the answer, that, "after the death of Littlepage, (which happened in a few weeks from the time of this transaction,) and not until then, the plaintiff began to prevaricate; and, after making several promises, and appointing. several days to commence the brick-work according to his contract, at length declared he would do no work unless he received cash for the same; that he considered Littlepage as fully paid for the land, and that, notwithstanding his frequent promises, he would pay the defendant nothing.' This allegation in the answer, is supported by several depositions, and not contradicted by any evidence. Note. This instrument of writing recited, in its commencement, that Littlepage, to secure the payment of the said balance, with interest from the date, had given an order on Green, which he had that day accepted, in favour of Price. But, probably, this was only a verbal order and verbal acceptance; for no written order is mentioned in any part of the record. In the answer it is said, (by a plain mistake,) not that Littlepage had given, but that, by the said instrument of writing, he obliged himself to give such an order. 1810. ged premises obtained December 22, 1802; to which decree the OCTOBER, present plaintiff obtained, on the 3d of June, 1803, from the Superior Court of Chancery, a writ of injunction to stay proceedings upon it until the further order of that Court. The prayer of the bill in this suit was, that the mortgage be cancelled, that all the defendants be compelled to join in a deed conveying to the plaintiff in fee the land aforesaid; or that he might receive any further or other relief more agreeable to equity. No answer was filed on behalf of Littlepage's children, and no proceedings against them appear in the record; according to which, on the 28th of September, 1804, "the papers in this cause were put into the hands of the Court, upon motion, by counsel for the defendant Thomas Price, to dissolve the injunction which had been awarded the plaintiff; but the cause being regularly set for a final hearing as to that defendant, the plaintiff's counsel moved the court to proceed to hear the same in chief as to him;" whereupon, the cause was heard as to the defendant Thomas Price, and the bill, as to him, dismissed with costs; from which decree the plaintiff appealed. Randolph, for the appellant. Wickham, for the appellee. Saturday, November 3. The Judges pronounced their opinions. Judge TUCKER. The only question in this case appears to me to be, whether a man, who, having an equitable title to lands, and, knowing of it, stands by, and either encourages, or does not forbid the purchase, (or, what is the same thing, the mortgage thereof to another,) shall be bound by the purchase or encumbrance thus made? In the present case, the complainant Green appears from the testimony to have encouraged Mr. Price to take the mortgage from Littlepage; and, by so doing, I conceive he has bound himself, and all claiming under him. I am of opinion, therefore, that the decree dismissing the complainant's bill be affirmed. (a) Green V. Price. (a) See 1 Fonb. b. 1. c. 3. S 4. 1 Judge ROANE said it was a plain case for affirming the de-sh. 217. cree. Hooe & Harrison v. Pierre's Adm'r. Ibid. 289. Applebury and others v. Anthony's Ex'ra, 1 Vern. 136. Hobbs v. Norton. 2 Vern. 370. Draper v. Borlase, 2 H. & M. 116. Pollard v. Cartwright. OCTOBER, 1810. Green Judge FLEMING. This appears to be one of the clearest cases in favour of the appellee that ever came before a Court of Justice. I here seems to have been a combination between Littlepage and Green (the latter of whom affects great ignorance) to swindle John Ferguson out of three or four hundred pounds; but in that nefarious business Price was no party: nor is he to be affected by it. The case is too plain to need further animadversion; and I shall only add that it is the unanimous opinion of the Court that the decree, dismissing the bill against Price, be AFFIRMED. Wednesday, 1. A defend Clay against Ransome. UPON an appeal from a judgment of the District Court of ant in eject- Prince Edward, rendered for the defendant, the 4th April, 1805, ment is pro. tected by 20 in an action of ejectment on behalf of Charles Clay against Elīzayears' posses sion before the beth Ransome. action bro't; but the 5 years excluded by sembly, are not to counted in his favour. 2. If, there The case was submitted, without argument, by Samuel Tayand 171 days, lor, for the appellant, and Munford, for the appellee, and is the act of As- sufficiently stated in the following opinion of Judge TUCKER; be except that it may be proper to mention, that the claim of the lessor of the plaintiff, as set forth in the special verdict, was founded on a deed of mortgage dated the 20th of April, 1772, fore, upon a from a certain Anthony Winston (who was found to have been in special verdiet in eject possession at that time) to James and Robert Donalds & Co.; a decree of foreclosure, dated the 3d of October, 1797, against the whether the heir at law and executor of Anthony Winston; and a deed, dathose under ted the 24th of January, 1798, to the lessor of the plaintiff. from claims, had 20 the Commissioners appointed by that decree to sell the land. No years' possession, exclusive possession by James and Robert Donalds & Co., by Anthony Winyears and 174 ston, or any person holding under him, either before or after the days, a venire 20th of April, 1772, or by the lessor of the plaintiff, after the 3d ment, it be uncertain defendant, or whom he of the said 5 de novo ought to be awarded. of October, 1797, was found by the Jury. Friday, November 2. The Judges pronounced their opinions. Judge TUCKER. Clay brought an ejectment on the 17th of August, 1799, against Ransome. The Jury found a special ver 1810. dict, which they conclude thus: "We find that Flamstead Ran- OCTOBER, some, the late husband of the defendant, was in possession of the land in question, from 1774, until his death, about ten years ago; and that the defendant hath been in possession thereof ever since;" and refer the law to the Court. An ejectment is a possessory action, and only a competent remedy where the lessor of the plaintiff may enter: therefore, it is always necessary for the plaintiff to shew that his lessor had a right to enter; by proving a possession within 20 years, or accounting for the want of it under some of the exceptions allowed by the statute. Twenty years' adverse possession is a positive title to the defendant: it is not a bar to the action, or remedy of the plaintiff, only; but takes away his right of possession. Clay V. Ransome. (a) 1 Burr. 119 Mansfield. three Bull. N. P. 103. 2 Esp. 20th N P. 402. citing Stokes v. Barry, Salk. 1 per Lord Every plaintiff in ejectment must shew a right of possession, as well as of property: and therefore the defendant needs not to plead the statute, as in the case of actions (a) Here the Jury have found an adverse possession for more than twenty years. But our statute of limitations() excepts different periods, from the 12th day of April, 1774, to the of October, 1783; amounting, in the whole to five years and 174 days. If Ransome's entry was made in the month of January, 1774, or at any time before the 23d or 24th of February in that year, his possession and that of his wife would amount to a com- 119 accordplete bar, after deducting the period allowed by the statute. If his entry were after the 25th of February, the case will be with- Code, c. 76. in the saving clause of the statute. I am therefore of opinion, that the verdict is not sufficiently certain upon this point, and that there ought to be a venire de novo for that reason. Judges ROANE and FLEMING Concurred. The judgment was therefore unanimously reversed, and a venire de novo awarded. 421. 1 Lord Raym. 741. Runnington's Luw of Eject. ant. (b) 1 Rev. s. 11. p. 109. |