บ. instituted for partition, in which Parthenia was a party. ALEXANA survey and partition was made, but was not acted up DER on by the Court, because the parties all understood that & OTHERS the back line was unsettled, and the partition then made was agreed to be temporary, and to be reformed if the PENDLE back line should be carried farther to the westward than north 6 degrees west. This agreement, although verbal, was binding on Parthenia, at least so far as to prevent her possession from being considered as adversary to Alexander as to that part of the land which might be taken away upon settling the back line, There was therefore no adverse possession until 1778, when Parthenia sold to Hartshorne. From 1778 to 1796, when C. Alexander instituted his suit in the Court of Chancery in Virginia, to alter the boundaries of the tract, there had not been 20 years of adverse possession. If Pendleton had looked back to his title he would have found that it was never conveyed by metes and bounds, prior to 1778, and that the question of boundary was still unsettled. He purchased while that suit was pending, and therefore must be presumed to have had notice of the claim. E. I. LEE and C. LEE, contra. This case is not affected by the question, which was the true back line of Alexander's land. Neither Parthenia nor those claiming under her, were parties to any suit in which that question was litigated, and cannot therefore be bound by any decision on that point. At the date of the bond, and of Robert Alexander's devise to Parthenia, he held only to the line north 6 west. The conveyance is to be taken most strongly against the grantor. In 1776, when C. Alexander made the deed to Parthenia, he held only to the same line, and it had been at that time established as his back line by a judgment in the year 1771. If there were sufficient evidence of a parol agreement, it could be only an agreement to re-convey the land, if the back line should be settled further to the westward, Being a parol agreement to convey land, it would have been void by the statute of frauds. ΤΟΝ, ALEXAN If Pendleton had notice of the pendency of C. Alexane der's suit in chancery to alter the boundaries, yet that & OTHERS Suit was afterwards discontinued, and there is no evidence that Hartshorne, or those claiming under him, PENDLE- had notice of the claim until after they had made their purchases. Pendleton holds their rights, and can protect himself by their want of notice. v. TON. JONES, in reply. There was nothing in the title to deceive purchasers. There was sufficient evidence on the face of the deed to show that the possession was temporary. They all refer to the back line of Howsen's patent; and every purchaser would necessarily enquire where that line was. Upon the enquiry he would find either that the line was in dispute and unsettled, or that it had been settled at north 17 degrees west. The agreement was merely evidence of the nature of the possession, and was no more affected, in this respect, by the statute of frauds, than would be a simple declaration of the tenant, that he held not adversely to, but under, R. Alexander. If the title is to be quieted, it must be upon the principle that long possession by certain metes and bounds, induces a presumption that some deed had been made conformable to the possession. But such a presumption is rebutted by the agreement. March 12th. MARSHALL. Ch. J. after stating the case, delivered the opinion of the Court as follows: "This being an application to restrain a person from the assertion of title in the ordinary course of judicial proceedings, the prayer of the bill ought not to be grant ed in a doubtful case; but if the case be a clear one, the interposition of equity is allowable; and the situation of the Find adjoining a growing city, the number of persons who are consequently interested in the settlement of the question, and the numerous titles which de pend on it, give it peculiar claims to the attention of the ALEXAN Court. DER & OTHERS บ. TON. By the laws which govern this case, a possession of thirty years under some circumstances, and of fifty years, PENDLEunder any, constitutes a title against all the world. The Appellee claining under a possession perhaps from the year 1732, certainly from the year 1741, has a complete title, unless son ething can be alleged by the Plaintiffs in error which shall deprive him of the advantages of that possession. It is urged that the contract of 1741, between the Alexander's and the Dade's, made the latter trustees for the former with respect to that portion of the land included in Berry's survey, which they had agreed to surrender in the event of establishing a more western back line. And that, therefore, in computing time, we must commence with the sale from Parthenia Dade to William Hartshorne, in May, 1778. Had the land continued in possession of Parthenia Dade and her heirs, the question whether this contract was of unlimited duration, or contemplated some particular suit then intended to be brought, would merit consideration. But as the contract does not appear on the title papers, but was verbal, a purchaser for a valuable consideration could not be affected by it unless he was a purchaser with notice. Finding Parthenia Dade in the quiet and undisturbed possession of four hundred acres of land, forming a parallellogram, limited on the west by the line north 6 west, he had a right to consider that line as established, so far as respected the land of Parthenia. He was not bound to know that a private parol agreement existed, which would control the possession. This trust therefore no more passed with the land to Hartshorne, than would any other secret trust of which he had no knowledge. cause. The various suits which have been instituted by, and against the ancestors of the Appellants cannot affect this A suit not prosecuted to a decree or judgment is not constructive notice to a person not a pendente lite purchaser; and were the law otherwise, those suits, until that instituted in 1796, would convey no notice of the ALEXAN- private agreement made in 1741. A knowledge of the DER suits therefore would not imply a knowledge of the trust; & OTHERS and possession for fifty years, though with knowledge of a better title, if auversary, constitutes a good defence PENDLE- against that title. ช. TON. In 1796, Charles Alexander instituted a suit against sundry persons claiming the land in controversy for the purpose of altering the boundaries which had been held by Parthenia, and those claiming under her, from the year 1732, and which had been surveyed under an interlocutory decree made by the Court of Chancery, in the year 1741. In defending themselves against this claim, the purchasers of the land had a right to unite the possession of Parthenia Dade to their possession, without being affected by a secret trust of which they had no notice. If upon the trial of that suit a possession of fifty years could not have been established, and if the Court should have been of opinion that this was not a case in which an adversary possession of thirty years would have constituted a bar, the merits of the title would have been necessarily investigated. But if Charles Alexander had permitted that suit to be dismissed, and had filed a new bill, he would not have been at liberty, in the computation of time, to avail himself of the pendency of the former suit, unless he could have connected the two suits together. The law is the same where a suit terminates by abatement and is not revived, such a suit takes no time out of the act of limitations. The title of Pendleton therefore has from that act all the benefit which can be derived from a possession from the year 1741, when a possession ostensibly adversary by metes and bounds unquestionably commenced, to the institution of this suit in the year 1806. The deduction which the laws of Virginia make from all computations of time in consequence of the war of the revolution, will not be sufficient to take this case out of the act of limitations. The Appellees title, being secured by a possession of more than fifty years, is unquestionably good, and it is proper that the doubts which hang over it, should be removed. There is no error in the proceedings of the Circuit Court and the decree is affirmed. PRATT AND OTHERS v. CARROLL. 1814. THIS case appears to be fully stated by the chief justice in delivering the opinion of the Court. MARSHALL, Ch. J. delivered the opinion of the Court as follows: $ After a lapse of seven years, the Court will refuse to decree a specific performance of a contract, in the part ex This is an appeal from a decree of the Circuit Court ecution of for the district of Columbia, whereby a bill brought by which the the Plaintiffs for the specific performance of a contract, was dismissed. The material facts are these: Complainants, or those under 'whom they claim, have expended Daniel Carroll, the Defendant, was, previous to the large sums of establishment of the city of Washington, proprietor of money, although the a large tract of land, part of which lies within its pre- first default sent limits. This part was conveyed to trustees, one was on the moiety for the use of the public, and the other moiety fendant, & alpart of the Dea for the use of the said Carroll. 1 though it be probable that the failure of tract on the circumstances ther party After the place for the seat of government had been the Defendant selected, and the boundaries of the city marked out, the in that respect has prevented legislature of Maryland authorized the appointment of the completion commissioners to superintend the affairs thereof, and of the execuamong other powers authorized them to divide the lots tion of the conin the said city between the public and the original pro- part of the prietors, and declared that such divisions made in a Complainants; specified form and certified by them should re-vest in having so chan the original proprietors the legal estate whereof they ged that neiwere formerly seized in the lots and squares assigned could derive, to them respectively. The commissioners were also from the exauthorized to sell the lots retained for the public use, ecution of the and on receiving the purchase money, to convey to the the benefits purchasers. On the 23d of September, 1793, James which were at Greenleaf purchased from the commissioners three thousand lots lying in that part of the city which had been conveyed by Carroll; and on the 24th of December, 1793, James Greenleaf and Robert Morris made from the commissioners an additional purchase of three thousand lots. Neither the purchase inoney being then paid, nor a division made, the legal title remained in the trustees, and was a security for the purchase money. These contracts, if executed by conveyances, would contract, all first expected. |