Sarah Boone and others, appellants v. William Chiles and others, appellees, 10 Pet. 177

Mr. Justice Baldwin delivered the opinion of the Court: Reuben Searcy was entitled, in virtue of the law of Virginia of May 1779, as an actual'settler, to four hundred acres of land in right of settlement, and a pre-emption of one thousand acres adjoining; one-half whereof he gave to John Martin for location and patenting; and by bond, dated 24th September, 1781, bound himself to convey seven hundrH acres thereof to William Hoy, u as soon as deeds are made to hinds in this country- in general.” Hoy was to have the first choice of the lands — he bought Martin’s share.

On the 15th December, 1781, Hoy, by an endorsement on the bond, assigned it to George Boone, his heirs and assigns; obliging himself. “ as surety to the within bond, and if the within lands cannot be obtained, by reason of a prior claim, then, and in that case, seven hundred acres, equal in quality and convenience, shall discharge the within bond.” On the 30th April, 1783, George Boone, by another assignment on the bond, assigned his right to Thomas Boone, his heirs or assigns, without recourse, if Iloy or his heirs are sufficient to make good the bond ; if not, George Boone bound himself and heirs to make it good to Thomas Boone, his heirs and assigns.

William Hoy obtained a patent in his own name, in 1785, for the whole tract; containing, by actual survey, about two thousand acres, Thomas Boone was in. Kentucky in 1802,1810, and 1819, in the neighborhood of the land, but nevpf took possession of any part, or instituted any suit to recover them-; he resided and died in Pennsylvania.- In 1823 he filed a bill in the circuit court of Kentucky, against William Chiles, Hezekiah Boone; George Boone, Nicholas Smith, jr., Nicholas Smith, sen., Jacob.Smeltzer, George H.

Baylor, Joseph Smith, John Evalt, and Joseph Cummins, praying for a conveyance of the legal title, and account of rents and profits; and such other and further relief as his case may require. After his death, in December 1817, the bill was duly revived by his heirs. By an amended bill the heirs of John South were made defendants, in 1824. By another amended, bill, the heirs of William Hoy were likewise made defendants, in' 1827. . In 1832 the plaintiffs, by an amendment to their bill, averred that Reuben Searcy was dead, intestate, and without heirs in Kentucky ; and made the heirs of George Boone parties.

The several answers of the defendants present distinct cases for our consideration ; each depending on its own circumstances, requires a separare view and examination: that of William Chiles will be first considered. The general ground of relief set forth by-the plaintiffs, against all the defendants, is founded on the assignments of Searcy’s bond to. Thomas Boone, as conveying the equitable title to the seven hundred acres, of which Hoy held the legal title; on this the general equity of the bill depended, which the plaintiffs made out.

In the original bill, it was charged against William Chiles, that Thomas.Boone, by the bond and assignments, had a clear equity to the one-half of the land patented to Hoy, (but was content to hold the parcels decreed to Chiles, as afterwards explained,).of which plaintiff had never been divested.

That in 1802 he had made an assurance, that he would convey to Hezekiah Boone, provided he would pay him in four years, seven hundred pounds; but the purchase was declined; no money paid, and the arrangement given up/ That in 1818, Chiles and the other defendants, in their own and complainant’s name, filed'a bill in the Bourbon circuit court of Kentucky, against the heirs of Hoy ; charging that plaintiff sold the land to Hezekiah Boone, and he to Chiles, and that all the plaintiffs in that suit desired the heirs of Hoy to convey the legal title which was prayed for by the bill; that Chiles obtained a decree for a conveyance, and a deed from a commissioner appointed by the court, to himself, of the interest of Hoy’s heirs; Chiles having full notice of Thomas Boone’s title, and that the contract with Hezekiah Boone had not been complied with.

The bill also charges, that the Bourbon suit was fraudulently instituted, and.prosecuted without the knowledge of Thomas Boone; that he never consented that the deed should be made to Chiles, who had no just claim to the land, but had engaged to maintain Smeltzer, Smiths, Evált, Cummins, and Baylor in the possession of iti Chiles, in his answer, admits the bond and assignment to Thomas Boone ; he then sets up a sale by Thomas to Hezekiah Boone ; and that on the 30th October, 1817, he, Chiles, purchased from the latter, by a written contract referred to.

He admits the suit in Bourbon county was brought by himself, Thomas Boone the noto complainant, George and Hezekiah Boone; on which there was a decree and conveyance made to him as charged, and refers to the proceedings in that suit; relying on it as a bar to-all claim by Thomas Boone for the purchase money. He admits full knowledge of plaintiffs’ interest, coupled with the knowledge that he had parted with it; that the sale was ratified by his agent, by power of attorney, and the agent’s signature to the contract of purchase ; both of which are made part of his answer.

He insists on the sale to Hezekiah ; denies fraud in instituting the Bourbon suit; and answers its being done without plaintiffs’ knowledge, by averring it was under the power of attorney, and contract with Hezekiah Boone; and pleads the record as an estoppel in bar of plaintiffs’ assertions;'which he denies. He also further states, that he has purchased out and holds the interest of Hoy’s heirs, as he can show by title and contracts regularly made but; and sets jup the lapse of time and total dereliction of his claim, as a bar to plaintiffs’ right to any. land.

The answer concludes by averring payment by Hezekiah to Thomas Boone, of the money due on the contract of 1802 ; if any balance is due, offers to pay it; but insists that plaintiff has no right to the land to which Chiles hold the legál title, and has a right to hold it; on doing equity to plaintiff, if not already done. In the amended bill against Hoy’s heirs, the plaintiffs charged Chiles with having fraudulently, and with knowledge of Thomas Boone’s equitable interest, obtained a conveyance of the title of three of the children of William Hoy, one of whom was Celia Newland and her husband.

In answer to this bill, Chiles admits the purchase from two of these children directly to himself, and that Newland and wife sold to Green Clay, who conveyed to him : he then alleges Clay to have been an innocent purchaser for a valuable consideration, without notice, till his purchase was complete, and prays protection as to this part of thé land. This presents the contest between-the plaintiffs and Chiles in a double aspect: first, as to his claim generally; and next, as to his claim under Green Clay, as to the share of Mrs. Newland, which will be distinctly considered.

The power of attorney from Thomas to George Boone, dated 1st October, 1787, authorized him to demand and receive a deed from William Hoy, for the seven hundred acres, to act fully fur. him in the premises, to appoint attorneys under him ; and on receiving a title and conveyance in the name of Thomas Boone, to give a discharge of the bond and Hoy:s engagement. The agreement between Thomas and Hezekiah Boone, dated 30th November, 1802, was for the conveyance of this land, for seven hundred pounds, to be paid in four years ; with an option to Hezekiah, within that time, to take the land or not.

The agreement under which Chiles claims to have purchased is in the following words: “ Articles of agreement made and entered into the 30th day of October, 1817, between Hezekiah Boone, of the county of Wood-ford, and George Boone, of the county of .the county of Shelby, of the one part, and William Chiles, of the county of Montgomery, of the other part, and all of the state of Kentucky, witnesseth, that the said Hezekiah and George has this day delivered up to the said Chiles all the papers they hold relative to the tract of land containing 700 acres, it being a part of a settlement and preemption granted by the commissioners to Reuben Searcy ; and the said Hezekiah and George Boone further agrees that the said Chiles shall have the free use of all the said papers, for the purpose of coercing the title to said land, if any is to be had, if not to get the amount in cash; and the said Chiles, on his part, is to use diligence in getting the title or the cash for said 700 acres of land, and is hereby authorized to effect the above purposes, either by suit or by compromise, provided the compromise is not for less than three thousand dollars, as he may think the most advantageous to the parties to this

article ; and the said Chiles further agrees, on his part, to defray all the expenses of the abovementioned investigation ; and when the above business is finished, the said Chiles agrees, further, to pay over the one equal half of the proceeds of the above business, if in cash or bonds, and if in land, the one equal half of what may be obtained, to the said Hezekiah Boone, and the other half the said Chiles keeps for himself; and the said George Boone declares himself satisfied with the above contract.

For the true performance of the above, the said Chiles and Hezekiah Boone bind themselves each to the other in the penalty of ten thousand dollars. Given under our hands-and seals the date above written. Hezekiah Boone, [seal.] George Boone, . [seal.] Attorney in fact for Thomas Boone. “ Teste, &e.

William Chiles, [seal.]” These are the papers referred to in Chiles’s answer, on which he reliés to make himself a purchaser of the equitable title of Thomas Boone; under which he obtained a decree of the Bourbon court, a deed from the commissioner of the whole legal title of Hoy’s heirs, and a deed from two of them to himself.

From the evidence in the record, it appears very clearly, that Hezekiah Boone never t complied with the agreement with Thomas Boone; paid no part of the purchase money; and abandoned the contract many years before the agreement with Chiles, to whom the state of the contract was explained before his agreement with Hezekiah and George Boone. As a matter of law, it is equally clear, that the power of attorney to George Boone, gave him no authority to sell the land, or to take a conveyance from the heirs of Hoy, to any other person than Thomas Boone or his heirs.

Chiles admits, that when the agreement was made between him, Hezekiah and George Boone, he knew of the title of Thomas Boone ; that he instituted and conducted thq suit in the Bourbon court, under the power of attorney to George Boone, who signed the agreement of 1817, as the attorney in fact of Thomas, Chiles does not pretend to have ever paid, or agreed to'pay any thing for the land: on the contrary, the agreement shows he was to pay nothing from his own pocket, in any event, except the expenses to be incurred, It does not even purport to be a- purchase, or contain one clause or word’ which can be construed as such.

The papers are delivered up to him for the purpose of coercing the title, or getting the amount in cash ; one-half of which, in case of success, he is to give to Hezekiah Boone, and retain the other for his own use. Nothing is to go to Thomas. George Boone, his agent, consents to it; and Chiles procures the legal title to himself in virtue of these papers. Such is the case between the .parties, as presented by tV>c pleadings, exhibits, and evidence.

A court of equity must be - regardless of all its rules, before it can recognise Chiles as a purchaser, or as having any right whatever in the land : it must also forfeit its character, if it sanctions such a course of iniquitous fraud. We deem it wholly useless to contrast the relative equities of the. plaintiffs and Chiles, in order to affirm their right to a decree for the conveyance of the legal title, obtained in violation of every principle which governs courts of equity ; unless he has made out some objections to the relief prayed, on grounds unconnected with the justice of the case.

It is objected that, inasmuch as the condition of-Searcy’s bond to Hoy was satisfied on' the latter obtaining the patent, the plaintiffs can have no equity by its assignment. This would be a sufficient answer to a suit against Searcy; but is none to a suit against Hoy’s heirs, to enforce the performance óf the terms- of the assignment from Hoy to George Boone ; which were an agreement to transfer the seven hundred acres, or an equivalent in quantity and convenience.

As between Hoy and Boone, and his assigns; this gave a right to call on Hoy for the legal title, which Chiles has taken to himself, when the equity was in the plaintiffs; whose equity depends, not on the bond of Searcy, but-•the contract of Hoy, made by the assignment of his equitable interest in the land.

This view of the' ease, disposes of the objection that the heirs of Searcy-are not parties : they had no interest in the land ; their father’s bond was satisfied by the performance of the condition, when the patents were obtained by Hoy; who, by purchase from Martin and Searcy, held the legal title to the whole fourteen hundred acres, subject to be divested only by the equity of Boone, derived by this agreement to transfer the one-half.

No act', therefore, remained to be performed by the heirs of Searcy ; the title of Boone becomes complete, by the union of his equitable, with Hoy’s legal title, without any.interposition of the heirs of Searcy, who have no interest to defend' or title to convey. The purchase from Martin removes another objection, arising from Hoy having the first choice of the land, and djdng without having made it; whereby, as is alleged, the' subject-matter of the bill was too vague to authorize a decree in favor of the plaintiffs.

As Hoy held the whole tract, there was no necessity for his making the selection, it' being immaterial to him which part he held under Martin or Searcy : his not making the election, and holding the whole in fraud of the rights of his assignee, could not prejudice him, to whom he had transferred as well the'right of selection, as the land itself, in equity.

Independently, however, of this consideration, we think that the identity of the land is ascertained by the terms of the bond and assignment, as well as the parlies themselves; it was the one.-half of the claim of Searcy, both bypre-emption and settlement, to be chosen by Hoy -; whose assignees had the same right to choose as had been in him.

Chiles, under the pretence and claim of being Hoy’s assignee, made the choice by selling to the Smiths and Srneltzer, the parts of the land on which they resided: and the plaintiffs, by their original bill, agree to take their share of the land, according to the decree of the Bourbon court, in that place. This selection is, therefore, binding on both.parties^; so that Chiles is. not at liberty to contest the location, made first by his own act in the sale to the occupants, confirmed by a decree obtained at his own suit, and agreed .to by the plaintiffs, as to the part to be conveyed.

It is further objected, that there, is a surplus in the survey to which the heirs of Boone are not"entitled ; if this objection could be sustained by any of the parties to this suit, it could be onlyNy those whose rights by purchase or possession would b^e disturbed, by decreeing to the plaintiffs more than the seven hundred acres-As-Chiles has neither-any right by purchase, or any equity by long possession or improvements; but claims only by the fraudulent assumption of the plaintiffs’ equitable title ; the land exclusively claimed by him, would be the first to be appropriated to-them ; and any surplus would be reserved for the benefit of those who had some pretensions to an equitable interest in it.

The lapse of time and the staleness of the plaintiffs’ equity, is also set up as a bar to a decree in their favor; but whatever effect time may have in equity in favor of a possession long and peace-, ably held, it can have-none in favor of Chiles, whose only claim is under the equity of Thomas Boone, and against whom the present suit was brought in six years after he first interfered with it. It cannot be permitted to him to acquire the legal title of Hoy, in virtue of Boone’s equity, and to hold it to his own use ; on the ground that Boone’s right had become extinct by the lapse of time, before he acquired it.

The means by which the legal title has been conveyed to Chiles, have affected his conscience too deeply with fraud, for a court of equity to suffer him to enjoy its fruits. As to him, the plaintiffs have established a right to a decree for the conveyance of whatever title he may have derived by any conveyance to himself directly, of the legal right of Hoy’s heirs. The next aspect of the case between the plaintiffs and Chiles, is presented by the.interposition of Green Clay, as an innocent purchaser from Newland and wife, for a valuable consideration, without notice; under whom he claims protection.

In the amended bill, the plaintiffs charge the purchase from Newland and wife to have been made fraudulently, and with notice of their title ; in answer to which Chiles states that Green Clay bought and received the title from John Newland ánd wife, knowing which, he made him a defendant in the Bourbon suit, charging him to be a guilty purchaser, with notice of the equity arising from the bond of Hoy ; but, Clay denying notice, and not being able to prove it, Chiles bought his share, paid for it, and obtained a conveyance.

He then refers to Clay’s answer in the Bourbon court; and insists that Clay was an innocent purchaser for a valuable consideration, without notice till his purchase was complete. In that suit Chiles had charged Clay not only with notice, but fhat-he purchased from Newland and wife, binding himself to make good all the contracts of William Hoy.

In his answer, Clay states, that the contract he made with Newland and wife was bona fide, in good faith, for a valuable consideration paid them without notice, or knowledge of any claim by Chiles; which he believes is founded in fraud and imposition ; “ as to the contract between this respondent and Newland and wife, it is committed to record, and will speak for itself; and this respondent believes the complainant Chiles has misrepresented the true meaning thereofbut does not deny the averment that he was bound to perform Hoy’s contracts.

The answer of Newland and wife to this part of the amended bill, states that, if they ever had any interest in the land, they have transferred their interest by a writing, amounting to a quit claim, to Green Clay, but they never conveyed their title by deed to him or any one else. This is the substance of all the pleadings on this part of the case. In 1821, the Bourbon county court made a final decree in favor of Chiles; as well against the heirs of Hoy, as Green Clay; which was reversed by the court of appeals in 1827, for the want of proper parties, without any examination of the merits.

In March, 1825, Green Clay, by his indenture, granted to Chiles all the right, title, and interest w'hich he holds by a deed from Newland and wife, dated 23d of May, 1814, to the tract of Searcy," and a pre-emption and settlement right of one Townsend, in consideration of two hundred and sixteen dollars, with warranty against himself and heirs, but against no other person.

The deed from Newland and wife to Green Clay was not referred to in the pleadings, made an exhibit in the cause, or so far as appears, used in the circuit cpurt; it was no part of the record before us at the argument of this cause at the last term, and no suggestion of diminution was then made.

At the May sessions of the circuit court, on a suggestion of the defendant, that this 'deed was on file, and had been used at the hearing, the court ordered it to be certified .to this court; and the counsel for plaintiffs having agreed to consider it as returned on a certiorari : it has been read, and we have taken it into our consideration as an exhibit in the cause, in doing this, however, "we must be distinctly understood, as clearly of opinion, that "it is not admissible by the rules of appellate courts; who can act on no evidence which was not before the court below, or receive any paper that was not used at the hearing. 9 Pet. -731.

Nor would it have been a proper subject for that court to háve considered, had it been offered to make out the ease of the defendant; the deed was not set up or relied on in the answer of Chiles or of Clay, which was referred to and made a part of it; the existence of such a deed was no part of their allegations. Clay asserted merely a contract; Chiles alleged only that Clay bought and received the title of Newland and wife, without stating what the title was, or how purchased; whether by deed or otherwise.

There was, therefore, no allegation in the answer of either, which referred to the deed ; it was not made a part of their case, -which was put on a contract of purchase, and not a deed, consummating it by a conveyance*: A party is not allowed to state one ease in a bill or answer, and make out a different one by proof: the allegata and probala must agree ; the latter must support the former, 4 Mad. R. 21, 9 ; 3 Wh. 527; 6 Wh. 468; 2 Wh. 380; 2 Pet. 612; 11 Wh. 103; 6 J.

R. 559, 63; 7 Pet. 274: and there is no one subject of equity cognizance, on which there is a wider difference between a deed and a contract of purchase, than in the 'pne now under consideration. A purchaser 'with notice may protect-himself under a purchaser by deed without notice; but cannot do it by purchase from one who holds or claims by contract only..

The cases are wholly distinct, in the former, the purchaser with notice is protected ; in the latter, he has no standing in equity, for an obvious reas'on :'that the plaintiffs’ elder equity shall prevail, unless the defendant can shelter hiffiself under the legal title acquired by one whose conscience was not affected with fraud or notice, and who can impart his immunity to a guilty pur.chaser, as the representative.of his legal rights fairly acquired by deed, in such a manner as exemptschifn from the jurisdiction of a court of equity.

Such a purchase affixes no stain~on the conscience, and equity cannot disturb the legal title. But as it does not pass by a contract of purchase without deed, the-defendant can aquire only an equity, the transfer of which does not absolve him from the consequences of his first fraudulent purchase. His second purchase of an equity will not avail him -more than the first", for thé original notice of the plaintiff’s equity taints-liis conscience, so as to make him a mere trustee, if he holds the legal title from one.who is not anffnnocent, bona fide, purchaser.

If, then, Green Clay purchased omy by contract from Newland and wife, they held the legal title ; such was the case presented by the answer-on which Chiles must stand at the hearing : but if permitted to rely on a deed; the court would render a decree on a case not before them, or one which .the plaintiff would be prepared to meet. 6 J. C. 349.

For these reasons we should have omitted any notice of this deed, but as it has been commehted on in the argument, and it is for the interest of all parties that the merits of the ease be finally adjudicated ; we have, for this purpose, considered it as evidence in the cause.

It is an indenture for the consideration of one hundred dollars, granting to Green Clay, his heirs and assigns, all the right, title, claim, and interest of Newland s.nd wife in the real and personal estate of William Hoy; all debts, dues, demands, rents, and profits, in law or equity, to which she was entitled as one of his heirs and legatees, with warranty against themselves and all claiming under them ; but against no other person whatever; and with also an agreement for further assurance, but in such a way as not to make themselves liable further than to convey such title as descended to them from William Hoy.

This is the ease set up in the answer, and made out by the proofs in the cause, to make out Green Clay to be such a purchaser, that his deed to Chiles will absolve the latter from the consequences of his fraudulent purchase, with full notice of the plain tiffs’ equity ; whether this is such a sase as will give to Chiles the protection he claims, depends on the rules which courts-of equity have adopted as to bona fide purchasers, for a valuable consideration, without notice. • It is a general principle in courts of equity, that, where both parties claim by an equitable title, the one who is prior in time is deemed the better in right. 7 Cr. 18; 18 J.

R. 532; 7 Wh. 46 : and that where the equities are equal in point of merit, the law prevails. This leads to the reason for protecting an innocent purchaser, holding the legal title, against one who has the prior equity : a court of equity can act only on the conscience of a party; if he has done nothing that taints it, no demand can attach upon it, so. as to give any jurisdiction. Sugden on Vend. 722.

Strong as a plaintiff’s equity may be, it can in no case be stronger than that of a purchaser, who has put himself in peril by purchasing a title, and paying a valuable consideration, without notice of any defect in it, or adverse claim to it: and when, in addition, he shows a legal title from one seised and possessed of the property purchased, he has a right to demand protection and relief, 9 Ves. 30-4, which a court of equity imparts liberally. Such suitors are its most especial favorites.

It will not- inquire how he may have obtained a statute, mortgage, incumbrance, or even a satisfied legal term, by which he can defend himself at law, if outstanding ; equity will not aid- his adversary in taking from him the tabula in naufragio, if acquired before a decree. Shower, P. C. 69; 4 B. P. C. 328; 1 D. & E. 767; P. C. 65; 7 V. 576; 10 V. 268, 70; 11 V. 619: 2 Ch. Cas. 135, 6; 2 Vin. 161; 1 Vent. 198. Relief will not be granted against him in favor of the widow or orphan. P. C. 249; 2 V. jr, 457, 8; 5 B. P. C. 292; nor shall the heir see the title-papers. 18 Vin. 115; 1 Ch.

Cas. 34, 69; 2 Freem. 24, 13, 175; it is a bar to a bill to perpetuate testimony, or for discovery. 1 Harrison’s Ch. 261, 3; Sugden 723, 4, 1 Virnon, 354, and goes to the jurisdiction of the court over him; his conscience being clear, any adversary must be left to his remedy at law, 2 V. jr. 457, 3 V. jr. 170, 183, 9 V. 30, and 18 J. R. 532, 7 Cr. 18.

But this will not be done on mere averment, or allegation ; the protection of such bona fide purchase, is necessary only when the plaintiff has a prior equity ; which can be barred or avoided only by the union of the legal title with an equity, arising from the paymenkof the money, and receiving the conveyance without notice", and a clear conscience. It is setting up matter not in the bill; a new ease is presented, not responsive to the bill; but one found-' ed on a right and title operating, if made out, to bar and avoid the plaintiffs equity, which must otherwise preyail, 9, V. 33, 34.

The answer setting it up is no evidence against the plaintiff, who is not bound to contradict or rebut it, 14, J. R. 63, 74. 1 Mumf. 396, 7. 10, J. R. 544, 8. 2 Wh. 383. 3 Wh. 527. 6 Wh. 468. 1 J. C. 461. It must be established affirmatively by the defendant independently of his oath, 6 J. R. 559. 1 J. R. 590. 17 J. R. 367. 18 J. R. 532. 2 J. C. 87, 90. 4 B. C. 75. Amb. 589. 4 Y. 404, 587. 3 J. C. 583.

In setting it up by plea or answer, it must state the deed of purchase, the date, parties, and contents briefly; that the vendor was seized in fee, and in possession ; the consideration must be stated, with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed.

Notice must be denied previous to, and down to the time of paying the money, and the delivery of the deed; and if notice is specially charged, the denial must be of all circumstances referred to, from which notice can be inferred ; and the answer or plea show' how the grantor acquired title, Sugden 766, 70. 1 Ath. 384. 3 P. W. 2801, 243, 307. Amb. 421. 2 Atk. 230. 8 Wh. 449. 12 Wh. 502. 5 Pet. 718. 7 J. C. 67. The title purchased must be-apparently perfect, good at law., a vested estate in fee simple, 1 Cr. 100. 3 Cr. 133, 5. 1 Wash. C.

C. 75, It must be by a regular conveyance ; for the purchaser of an equitable title holds- it subject to the equities upon it in the hands of the vendor, and has-no better standing, in a court of equity, 7 Cr. 48.7 Pet. 271. Sugden -722. Such is the case which must be stated to give a defendant the benefit of an answer or plea of an innocent purchase without notice ; the case stated must be made-out, evidence, will not be permitted to- be given of any other matter not set out, 7 Pet. 271.

Such are the privileges of innocent purchasers, and such the guards against those who may assume their character in courts of equity ; we have only to apply their law to the answers of Chiles and Clay, together with the exhibits and proofs in the case, tó ascertain- whether Clay filled that character when he conveyed to Chiles, or at any other time. The answers are- .as barren, of the averments necessary to make a case of such a purchase -aS would be protected against the prior equity of the plaintiffs; as the record is of the proof of any fact to support it.

Nor does the consideration of the deed from Newland and wife to Clay, bring the case any nearer to the established rules and principles of equity. Though, in form, a grant by indenture, it is in effect a mere release and quit-claim, as stated by Newland and wife in their answer; it does not purport or. profess to convey thé land ift controversy ; nor does it assert any title to, or seisin of it; the consideration expressed does not apply to this land, more than to a legacy or personal property.

The grant is definite only in pine, respect] that it is of whatever descended to the grantors from'William Hoy, but does not specify what it was; and the words of the grant are fully satisfied, if any thing'so descended,' whether realty or personalty. As to this land, Hoy was a trustee by his own contract; nothing did or could descend to his heirs, but. the dry, barren, legal title, without a shadow of beneficial interest; which was all that Newland and wife intended to convey, or Clay to receive by the deed.

The covenants of warranty, and for further assurance, áre expressly limited to their right, such as it was, and to their own acts onlythey gave no covenant against the acts of Hoy: and by conveying only such interest as they held by descent, it passed to Clay with the sainé encumbrances of Boone’s equity, as if it had remained in Newland andjvife; who, neither in their answer or by their deed, pretend to any title or right.

These circinnstances make the deed suspicious on its face ; and in the absence of affirmative proof to support the recital of the payment of the consideration, of any evidence of seisin, or even a claim of title by the grantors, rather weakens than sustain, the answer.

When we find the distinct admission and, full proof of the prior equity of-the plaintiffs, with full notice to Chiles, who claimed, not as a purchaser but by a special contract with Hezekiah Boone, for the division between themselves, of whatever, either of land or money, they could recover in right of Thomas,Bo'one’s known equity, and with |he plain intent to defraud him; the purchase from Clay, and the setting him up as innocent purchaser for a valuable consideration without notice, under all the circumstances of this case ; so far from purging the conscience of Chiles of its original taint, or imparting to him any protection as the representative of Green Clay, stamps the conduct of both -with bad faith.

Chiles appears on this record, a mere pretender to a purchase ; by his agreement with Hezekiah Boone and George Boone, as the attorney in fact of Thomas Boone, he purchased the title of neither; his only claim under it was to the one-half of whatever he could acquire.

He did not, therefore, even fill the character of a purchaser with notice, who by the rules -of equity may purge his guilty conscence by purchasing from one whose clear conscience and legal title place him beyond the jurisdiction of equity; the immunity of an innocent purchaser cannot be imparted.to the. fraudulent usurper of another’s rights without purchase. But there is oné'circumstance, which saves us the necessity of considering the defects in the averments of the answers or proofs of the deed from Newland and wife to Clay, dr from him to Chiles.

Chiles states, in his answer, that being unable to proye notice to Green Clay before his purchase from.Newland and wife, he purchased from Clay; yet he did so establish the fact of Clay’s guilty purchase; that he obtained a decree against him in the Bourbon court.

He purchased from Clay, while that decree was in full force ; and now appears on the record, claiming to be protected under this purchase by the .equity of Clay, as an innocent purchaser; when Clay, after being an adjudged mala fide purchaser, by the final decree of a court of competent jurisdiction, clothed Chiles with his own character by his deed in 1825.

It would present the administration of equity jurisprudence in different courts on very different principles, if Clay, who could not protect himself in a state court at the suit of Chiles, could protect Chiles here, at the suit of Boone ; or that Chiles, after procuring the decree against Clay, in a suit to which he made Thomas Boone a plaintiff, on the ground that he purchased with notice; should now obtain a decree against Boone, on the ground that Clay was an. innocent purchaser, for a valuable consideration fully paid, without notice of any defect in his title, till it was complete at law by a conveyance in fee, and in equity by the actual payment of the money.

Neither the pleadings, the exhibits, or the evidence on this record, afford us any warrant for such a proceeding: on the contrary, they make it our duty to decree a conveyance from Chiles to the plaintiffs, of whatever right or title he may have acquired by the deed from Green Clay. We are next to consider the case of the plaintiffs, as to the other defendants.'- The heirs of South, by their answer, disclaim any interest in the land; nor does it appear that the heirs of Hezekiah or.

George Boone have any interest in the land or at any time have-been in possession, or held any title under Hoy’s patent. -As to these- defendants, therefore,, there is no subject-matter for any decree, except for the dismission of the bill. As to the heirs-of Hoy, the plaintiffs have made out an undoubted right to a conveyance of the legal title. Those who have answered, set:-'up no title or claim to the land; and they must execute the trust which has descended to-them, by conveying their legal title, to plaintiffs. John.

Evalt is admitted to have been in possession for more than twenty years, under an adverse title by patent to Flournoy. The plaintiffs have, therefore, no right to - tire land thus held. ; Nicholas Smith states, in his answer, that he holds fifty acres of the land claimed by the plaintiffs, by purchase from John Jones, by deed, which he makes an exhibit in the caiise;' that this fifty acres is a part of Flournoy’s patent, which he holds adversely to the claim of Searcy.

The deed is dated'in December, 1797, conveying, in consideration of one hundred and twenty-five pounds, fifty acres of land, with general warranty. Independently of the deed from Jones, -it is clearly proved by several witnesses, that Smith made the purchase from him; settled on the land in 1798, where he lived till his death; and that there was a continued possession and residence on the land by him, and those claiming under him, to the present time, and valuable improvements made.

The plaintiffs do not controvert, this purchase or residence; they do not charge Smith-with any act affecting his conscience, or show that he ever uurchased, or made claim under them, or any person asserting an) :ght under their title. The title of Flournoy appears to be by an equity older than Searcy’s ; though his patent- is later than Hoy’s. We can perceive no ground of equity, to entitle the plaintiffs to a conveyance of the title thus acquired by Smith.

He and those under him, have had an adverse possession of twenty-five years, before the bringing of this ‘suit; ánd his possession of the fifty acres cannot be disturbed, either at law or in equity. The only charge in the bill against the remaining defendants, is their combining to institute the suit in the. Bourbon court, of which there is not only no proof, but the contrary appears by the record of that suit; they were not parties, and took no

part in the prosecution of it. The bill, however, alledges that Chiles “had made, pome engagement to maintain Smeltzer, Smiths,'Cummins, and Baylor, in detaining possession', and enjoying the profits for a long time past, still refusing to surrender.” The prayer against them was “ to compel the defendant, Chiles, or such of the defendants as nowh old the title, to convey the tract described by the deed under the decree to Chiles, to account for rents and profits, and such other arid further relief as his case may require.” The answer of Nicholas Smith, jr., Nicholas Smith, sr., Jacob Smith, and George H.

Baylor, was joint and several; jointly they denied being parties to the Bourbon suit, or being bound by the decree- They admit that Searcy claimed the land ; that it was located by Martin, and patented to Hoy; allege a surplus of five or six hundred acres in the survey; and that plaintiff could be satisfied without disturbing them; plead the lapse of time, and staleness of the demand as a. bar ; and deny the right of the plaintiffs to. .recover.

They state that they have been informed, that Hoy assigned Searcy’s bond to George Boone; call for proof of the assignment to Thomas Boone ; charge that if the bond was assigned to him, it has long since been cancelled between Thomas and George Boone ; that George Boone assigned-the land to John South, investing him with all the title to the land, which George Boone derived from William Hoy, by the agency, consent, am authority of Thomas Bopne, if the bond was ever assigned to him.

They also charge, that South, by virtue of such assignment, held the bond till his de th, and that his executor held it, till Chiles obtained it by fraud; and that they are entitled to certain parcels of land, by purchase for a valuable consideration, from John South. They then aver, that Peter Sriieltzer purchased four hundred acres, and took South’s bond, with)surety, for the title; took possession of the same in 1791, settled upon, improved,-and resided on it till his d^ath'. That George II.

Baylor claims undeyr Smeltzer by purchase from his heirs, for a valuable consideration ; now resides upon it ;'and that a c ntinued residence has been kept upon the land, on which theie'are Large and yaluable improvements. That Nicholas Smith holds two hundred acres, by purchase from Jacob Swope, in 1797,-who .purchased from George Pope, in 1795, who purchased from South, in 1794. That Smith • resided on this land from 1798, and made valuable, improvements- thereon; which .residence has been continued by him, and those under him, to the present time.

These defendants,-then charge, that Thomas Boone was in Kentucky in -1802, 1810, and 1819; knew of the sales by South of the land, they occupied,' but gave them no notice of his title; and, on .the- contrary, disclaimed- it, in conversation, and'-then proceed to gi-ve.ari account of heir connexion with Chiles, in substance as follows.

He came to the Smiths ahd Smeltzer, stating that he held Hoy’s legal title to the land ; that South’s bonds were worth nothing, and they would lose the land and improvements: whereupon they, ignorant of their rights, and the title to the land, compromised with Chiles, agreed to give him up South’s bonds, an'd to pay him ten dollars an acre, in three annual instalments, for six hundred acres, each to pay for his own. share.

Chiles was to make them Hoy’s title, but having received South’s bonds, he obtained from his executor the bond of Searcy;- struck out the assignment to South; gave up-his bonds' to his executor; shortly after which, he commenced the suit in the Bourbon court, and obtained the decree referred to in the bill. They charge Chiles with fraud in the whole transaction ; pray that their answer may be taken as a cross bill against Chiles; that he be compelled to restore the bonds of South ; or that they may haye such' decree against him as their case may require,, and their contract with him cancelled.

They deny the plaintiffs’ rights to rents and profits in case of recovery : but if they lose the land, pray a just .compensation for their lasting and valuable improvements; and then set up a contract between Thpmas Boone and a certain-Boone Engles; in 1822, in pursuance of which, the present suit was brought by him in their names; which they allege to be within the statutes of champerty and maintenance, on which they rely, as well as on the common law, the rules.and principles of equity, and the statute of limitation.

Cummins claimed by purchase from Smeltzer, which his heirs, in their answer, aver to be fraudulent; but if it is. valid, they set up thirty years’ possession of part of the land before suit brought,as a'bar.

Nicholas Smith, by an amended answer, refers to a copy of Searcy’s bond, with all the assignments thereon, previous to the erasure of the assignment by George Boone to South; “ under whom all the tenants in possession, including this defendant, claim their several portions of said sevep hundred acres of land; which assignment bears date August 6,' 1792. “ And if said South, as executor of William Hoy, had ever sold any portion of said.one thousand four hundred acres, or the moiety seven hundred acres claimed by complainants herein, (for this seven hundred acres was never defined to any of tlie original purchasers previous to said assignment, which is not admitted,) this defendant relies confidently that said assignment last mentioned of said bond to him, said South, would enure in equity to confirm their claim; nor could its subsequent' cancellation, or the surrender of said bond, with the consent of the executor or administrator'of South, affect or impair their claims.

He re-exhibits the copy of said bond, with the several assignments thereon, and relies on time and circumstances, to show that the one from George Boone to South was done by proper authority from Thomas Boone.” The cause was at issue on the general replication.

At the hearing, all the material facts alleged by the defendants in relation to their purchase from and under South, their agreement with' Chiles, the surrender of South’s bonds to his executor, and the delivery by him to Chiles of Searcy’s bond, with the assignments thereon, were fully established by the exhibits and proofs in the cause ; as, also, their possession, residence, and improvements on the land as stated in their answer. But they wholly failed in proving that the assignment of Searcy’s bond by George Boone to -John South, was made with the knowledge, consent, or authority of Thomas Boone.

South married a daughter of William Hoy, to whom he was executor ; the agreement between Chiles, the Smiths, and Smeltzer, was made in 1817 ; South’s bonds were given up in the winter of 1817,-’18, when Childs received the bond of Searcythe suit in the Bourbon court was commenced in January, 1818, and is yet pending.

This suit was commenced in 1823, while the dectee of the Bourbon court was in force, and before any appeal to the' court of appeals of Kentucky: it was before- this court in 1834-, on a certificate of division from-the circuit court of Kentucky, on the question whether they had jurisdiction of the cause.

It was then decided that'it had-jurisdiction ; .that the heirs of Hoy were not necessary parties, except for the purpose of obtaining the legal title if it.remainfed in. thém'; that a decree might be made without them, as .to parties properly before, the court; that the.heirs of George Boone were not necessarily' defendants, and no proof need be made respecting them. 8. Pet. 535, 7. All questions of jurisdiction of parties are therefore closed.

The objections to the plaintiffs’ recovery on the ground of the contract between Thomas Boone andHoon Engles being within the statutes of champerty and maintenance, cannot be sustained for two reasons: 1. The English statutes on this subject, which were adopted' in Kentucky, punished the offence and declared the contract for maintenance void between the parties, but did not direct or authorize the dismission of the suit instituted between other parties in furtherance of such contract.

Boon Engles is no party to this suit; and it dees not concern the defendants whether it was commenced and is conducted by his agency, or by the plaintiffs themselves: the right of plaintiffs is not forfeited by such an agreement, and it may be asserted against the defendants whether the contract with Boon Engles is valid or void. S.P. Litt. Select Gas. 522. 2.

By the act of 1798, which was in force when this contract was made and suit brought, no person could be prevented from prosecuting or defending any claim to land held under the land laws of Virginia ; nor shall any suit brought to make good such claim be considered as coming within the provisions of the common law or any statute against champerty or maintenance. 1 Mor. and Brown, Kent Stat. 282, 5. These statutes were not revived till 1824. The first question of fact which arises, is in what right the Smiths and Smeltzer first entered upon the land purchased from South.

The amended answer of Nicholas Smith, junior, is explicit on this point; stating that all the tenants in possession, including himself, claim under South, by the assignment of George Boone to him.

Though this answer is not evidence against the other defendants, yet, as they do not deny notice of the assignment to Thomas Boone,.before their purchase, and in their answer pray for a restitution of South’s bonds, there is good reason to believe the statements of Smith, especially in connexion with the proofs in the cause, Barbara Smeltzer, thfe widow of Peter, testifies that he settled on the land in 1791; South came down and marked out the four hundred acres; that it was held under South, who claimed' under the bond from Searcy, assigned by Hoy to George Boone.

That at the time they first settled, South.represented to Smeltzer that he had traded for .that bond, they were soon after informed that he had not got the bond, but soon after obtained it from George Boone; that Smeltzer soon afterwards informed George Boone of what had been done, who appeared well pleased. William Johnson testifies that Smeltzer purchased from South, and began to improve in 1786. B. Eastin states that he took possession' in 1789. It is also testified by William Boone, that South had sold before he got»the bond from George Boone'; and the evidence of Mrs.

Smeltzer is strongly corroborated by Benjamin Mills, esquire, to whom some of the Smiths and Smeltzers made a professional application relative to the chain of title between South and Hoy. He found no authority to George Boone to assign the bond to South, which was the only claim, or color of claim, he had to the land; hence and from his knowledge of South’s character, he concluded he had sold without claim, and brought no suit for them.

Joseph Steele testifies to the declaration of George Boone, that South was in treaty with.him for the bond, for some time before the assignment was made; and that Smeltzer 'was informed previous to his purchase, that the land belonged to Thomas Boone. No objection having been made on the hearing to the deposition of. Steele in relation to the declarations of Boone, they are competent evidence ; and in connexion with that of the other witnesses, fully support the testimony of Mrs. Smeltzer, and the amended answer of Smith.

We must, therefore, consider Smeltzer as having purchased from Southj his right under the bond of Searcy, and the several assignments down to South, with notice thereof. Smith’s amended answer is conclusive, that he so purchased the two hundred acres in 1797, by the assignment of South’s bond. In his deposition he also states, that he soon afterwards purchased from.

South sixty or seventy acres, in addition, of which he took possession* and has ever since held, under the same claim; that he lent South three hundred dollars, which was to go in paft payment of the land, but finding South had r.o title, he recovered it back by suit. In 1817 the parties stood thus: 'Smeltzer had been in possession, under a claim of title by Searcy’s bond and assignments for twenty-six years, of four hundred acres.

Smith had held ¡¡toe-session of the two hundred acres nineteen years, which, added to the possession of Pope and Swope from 1794, made twenty-three, and of the sixty or seventy acres for about eighteen years, when they gave up South’s bonds, and agreed to purchase from Chiles, who claimed the legal title of Hoy.

During this time, Thomas Boone had neither affirmed or disaffirmed the sale by South, made no entry on. the land, gave any notice to Smith or Smeltzer, instituted no suit, or made any effort to obtain the legal title from Hoy’s heirs; though his right was then the same as now made out, and had been vested in him for thirty-six years. He made George .Boone his agent in 1787 ; yet, for thirty yearh he appears to have been wholly inactive, in asserting or endeavoring to complete the title.

The agreement with Hezekiah Boone in 1802, seems to have been the, only positive assertion of.a right in the land made by Thomas Boone. When,the present suit was commenced, Smeltzer, and those under him' had' been in possession thirty-two years ; Smith twenty-five years the two hundred acres, and twenty-one of the sixty or seventy acres ; and the equity of Boone aros.e forty-two years before.

From this state of facts, it is perfectly clear, that, ’if Smiths and Smeltzer can be considered as claimants in their own right, adverse to the title of Thomas Boone, the lapse of time alonéis a complete bar to'any equitable relief: the rules of equity as to the effect of time in favor of possession, are to 3 well settled to be stated'or doubted. 2 Jac. and Walker 138, &c., 9 Wh. 497. 10 Wh. 168. 3 Pet. 52. 6 Pet. 66. 5 Pet. 491. 7 J. C. 122. Wh. 150, 74. 9 Pet. 416.

Thomas Boone’s only standing in a court of equity, is by considering these defendants"as hib trustees, by their purchase under South or Chiles,,or both. As neither of-them sold -by any lawful authority from him, he is not bound by, and may repudiate their'acts; the consequence of which, would be a bar of his claim on these defendants holding adversely.

But as South assumed the right to sell the interest of Thomas Boone, in virtue of the assignment from George Boone, as his attorney in fact, and Chiles acted throughout all his proceedings, undér the agreement signed by George Boone in the same capacity, which was an express recognition of the original right of Thomas Boone; he may waive the defect in the power of attorneyj ratify the acts of his agent, and elect to consider the purchasers from South and Chiles as holding through and under him.

When the purchasers from them discovered that neither South or Chiles had any right in the land, they too had a right of election to hold under the title which they intended to purchase ; under which they had taken possession of the land, and held it till the discovery of the fraud: or to disclaim the purchase, renounce all rights consequent upon it, and remain in possession as claimants adverse to the title under which they entered. It is unnecessary to decide on the effect of such disclaimer, had it been made before the purchase from Chiles, or the filing the bill.

We cannot find in the evidence or pleadings, that Thomas Boone ever made any election, as to considering these defendants holding under or adverse to him : but it is very clear that they originally purchased, entered, and held under his title ; and it does not appear that they ever assumed an attitude of direct hostility to it. We have come to the conclusion, that we must now consider them, as holding by their original claim, so far as to authorize the plaintiffs to make them their trustees, in virtue of their purchase from South, and ratify the agreement-of Chiles.

There is no other way in which the plaintiff can escape from the consequences of the stalene'ss of his equity, coupled.with the long possession of the defendants, than by considering them as friendly purchasers and possessors under them. The plaintiffs put themselves out of-ccurt, by setting up the purchase and possession of defendants as adverse to their equity : for they then would have no protection against the lapse of time, which they have neither explained or accounted for; 17 V. 88, 9, 96. 1 J. and W. 62, 3, and note. 1 J. C. 47, 8. 3 J. C. 586. 1 J. C. 354. 5 J. C. 187, 8. 3 J.

C. 218, and all bills in equity which seek to disturb long possessions, deserve the utmost discouragement; 1 Atk. 467, 1 J. and W. 62. The plaintiffs must, therefore, make their claim on the defendants, as their trustees, by direct contract, or by implicatio n from the purchase under their title; in either case, the lapse of time effects them. They cannot enforce' the execution of an express voluntary trust, after its known'disavowal for such time, and under such circumstances as would make an adverse posse,s-. sion a bar; 3 Pet. 52. 7 J. C. 122. 2 Sch. and Lef. 607, 36, 8.

If a purchaser is made by implication an involuntary .trustee for the vendor, so as to be affected by his equity, it must be pursued in-a reasonable time; 4 J. C. 316. 3 J. C. 216. 17. 4 B. C. 136, 8. 1 Cox 28, 17. V. 96, 160. Though time does not bar a direct trust as between trustee and and cestui que trust, till it is disavowed.; yet, where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent, and his purchase would have been repudiated for fraud. 4 B. C. 136. 17 V. 97. 1 B. C. 554.

So where a party takes possession in his own right, and was prima facie the owner, and is turned into a trustee by matter of evidence merely, 3 J. C. 216. And where one intending to purchase the entire interest in the land, took a conveyance without words of limitation to his. heirs, passing only an estate for life, the lapse of fourteen years, after the expiration of the life estate, was a protection to the heirs of the purchaser; 5 J. C. 185, 6.

What that reasonable time is, within which a constructive trust can-be enforced, depends on the circumstances of the case ; but there can be few cases where it can be done, after- twenty years’ peaceable possession, by the person who claims in his own right, but whose acts have made him a trustee by implication. His possession entitles him to at least the same protection as that of a direct trustee, who, to the plaintiffs’ knowledge, disavows the trust, and holds adversely; as to whom the time runs from the disavowal, 3 Pet. 52, because' his possession is thenceforth adverse.

The possession of land is notice of a claim to it by the possessor, Sugden Vend. 753, 4; if not taken and held by contract or purchase, it is from its Inception, adverse to all the world, and in twenty years, bars the owner in law and equity; 8 Cr. 260. 4 Wh. 221. 5 Pet. 354. A purchaser in possession by a contract to sell, is in law a trespasser; but in equity he is the owner of the estate, having taken possession under the contract, and the vendor is in the situation of an equitable mortgagor, 15 V. 138.

If the entry was by purchase, and the purchaser claims thé land in fee, he is not a trustee ; his title, though derivative from, and consistent with the original title of the plaintiffs, is a present claim in exclusion of, and adverse to it. A vendee in fee, derives his.title from the vendor.; but his title, though derivative, is adverse to that of the vendor : he. enters and holds for himself. Such was the doctrine of this court in Blight’s lessee v. Rochester, 4 Pet. 506, 7.

In that case the court said, “ The vendee acquires the property, for himself, and his faith is not pledged to maintain the title of the vendor.” “ The only controversy which ought to arise, respects the payment of the purchase money, how far the vendee is bound to this, by law, or by the obligations of good faith; is a question depending on all the circumstances of the case. “ If'the vendor has actually made a conveyance, his title is extinguished in law as well as equity; if he has sold, but has not conveyed, his- contract, of sale bjnds him to convey, unless it be conditional-; if, after such a contract, he brings an ejectment; he violates his own contract, Unless the condition be broken by the yendee, and if it be, the vendor ought to show it.” “ If defendant claims under a sale from plaintiff, and plaintiff himself is compelled to assert that he does; then the plaintiffs themselves assert a title against this contract.' "Unless they show that it was conditional, and that the condition is broken, they cannot, in the very act of disregarding it themselves, insist that it binds the defendant in good faith, to acknowledge a title which had no real existence.

Upon reason, then, we should think, that the defendant in this case, under all the circumstances, is at liberty to controvert the title of the plaintiff.” 7 Wh, 548, 50. In applying these principles to the case before us, it is very cíear that neither the purchase from'South or Chiles, is any equitable estoppel' to the defendant’s., controverting' the title of' Boone; when he disaffirms and violates the contract of purchase,by seeking to burn them out of possession.

He cannot make them constructive trustees by their purchase, and then be permitted to disavow the purchase; without subjecting himself to the consequences of delaying the prosecution of his right. As trustees by implication, in equity, they may claim the benefit of the lapse of time ; if he considers them as purchasers from him, or by a title derived from him, he can have no hold upon their conscience, to surrender him the possession, if they are willing to pay the put chase money.

Whether they purchased from him, or from another, who assumed to sell by his authority and in his right, matters not; if they claim by his title, and thus become his trustees by his affirmance of the sale, the law of equity compels him to assert his rights in a reasonable time. . When he does so, the execution of the trust will be enforced; but it will be enforced on both parties according to the terms of the purchase, and the tiust which equity raises on it by implication.

Equity makes the vendor without deed, a trustee to the vendee, for the conveyance of the title; the vendee is a trustee for the paymfent of- the purchase money, and the performance of the terms of the purchase. But a vendee is.in no sense the trustee of the vendor, as to the possession of the property sold ; the vendee claims and holds it in his own right, for his own benefit, subject to no right of the vendor^ save the terms which 4he,contract imposes; his possession is, therefore, adverse as to the property, but friendly as to the performance of the conditions of purchase.

In virtue of his legal title, the vendor lias a legal right of possession, but equity will not permit him to assert it, unless the vendee has violated the contract: he will be enjoined if the vendee performs it. It is very certain, that a sale of the legal title by deed, creates no legal estoppel, by which a purchaser is prevented from contesting the title of the vendor, or the title of any person from whom the vendor derived title, 7 Wh. 647, &c.

It is equally certain,’that the sale of an equitable title by bond, or other contract, cannot have a contrary effect in equity; which decides according to the equnm et bonuni of each case. In this case, Boone, comes into court to obtain possession under an equitable title only; he is barred by time, unless he can make the defendants his trustees at the institution of the suit; he charges them with no fraud, and nothing is averred or proved against them to so affect their conscience, as to give a court of equity ¿urisdietion.

He is thus compelled to. rest on their purchase of his title from South and Chiles, making them constrctive trustees; which, on the pleadings and evidence, we are of opinion he mayado. There is, then, a trust between them, but it is that trust which, in equity, results from the contract of purchase. Boone is.a trustee for-such title as the defendants purchased, and were entitled to receive; they are trustees for the.purchase money they agreed to pay for it. Boone avers they bought his title, which, we think, is made out. He, then, is the cestui que trust as to the money, and they for his title.

To divest this trust of all mutuality, would be subversive of every rule of equity; it will never award a surrender of the posse' ion oí land by a purchaser of an equitable title, but on a clear violation of the condition of purchase, clearly proved by the plaintiff.

He is without remedy at law in this case; compelled to come into equity, he must do it; he sets up a trust in the defendants for his use : all he can ask is its execution by payment of the purchase money: if he has a decree for that, justice is done to him; and nothing can be more just than to decree that he shall perform the act in consideration of which he obtains relief. ' If he comes into court to turn them out, on the ground that defendants have purchased a title which must be traced up to him, in virtue of the contract of purchase; he asserts a title against this contract when he denies them the benefit of the purchase: and in the language of this court in Blight v.

Rochester, the plaintiffs cannot, in the very act of disregarding it themselves, insist that it binds the defendants, in good faith, to acknowledge the title. The defendants may contest it, when set up to defeat the purchase in this case in equity, as it was done in that at law. This court did not then think their decision to be at variance with the decisions of the courts of Kentucky ; nor do we think that we now, in any way, interfere with them.

They have held that the possession of the purchaser from the plaintiff without deed, is friendly to the plaintiff; and stops the running of the statute of limitations, 2 Bibb 506. But that a vendee by deed, may, at law, contest the title of the person under whom he bought; though a vendee by executory contract cannot, if he is in possession under, and looks to the vendor for the completion of his title : in the first case he holds adversely, ih the second not. 3 Littell 135, 6.

So, if he purchases from the patentee, and holds his bond for the title, 5 Litt. 318, a defendant cannot, in ejectment, set up an outstanding title in a third person, if he purchased from plaintiff without deed., 6 Litt. 444: nor can a tenant or one who purchases from him, contest the title of the landlord. 4 Bibb 33 ; 2 Marshall 243.

These decisions are, unquestionably, correct; but the principle on which they are founded, is very different from that which the plaintiffs’ counsel deduce from them : they admit that possession, under a deed conveying a legal title, is adverse, and that & defendant so holding may deny the title of his vendor in a suit at law. The contract of purchase, then, is no estoppel, though by the most solemn instrument known to the law.

The same principle seems closely applicable, by analogy, to a suit in equity, in which the plaintiff rests on an equitable title only, which has been sold to the defendant, as the foundation of a decree awarding possession of the land purchased; the proceeding is analogous to an ejectment; the process of executing such a decree is the same in Kentucky, by an habere facias.

It is difficult to perceive any sound reason why the same analogy should not be observed in the proceedings previous to the decree: if the defendant, a vendee of the legal title by deed, can, at law, contest the title of his vendor, who is plaintiff; why may not the vendee of an equitable title, by bond or other executory contract, enjoy the same right in a court of equity ?

We are clearly of opinion that the defendants in this case had such right, and that there is nothing in the evidence before us which could have deprived them of it, had they rested their case upon their adverse possession alone ; but the admissions of Smith in his amende® answer, the proofs of the cause as to Smeltzer, together with the joint answer of themselves and Baylor, place them in a different position.

As to them, we are perfectly satisfied,that their possession was a perfect protection against the equity of Thomas Boone, when this suit was instituted ; but we think that his equitable right to the purchase money agreed to be paid to Chiles, has been saved by their answer and the evidence in the case; our only difficulty has been, whether we can, on the pleadings, make such a decree as, in our opinion, comports with the justice and equity,of the case.

The specific prayers of the bill are, that such of the defendants as hold the title, convey to the plaintiff the tract described by the deed under the decree to Chiles; neither Smiths, Smeltzer, or Baylor hold this title, or claim under the decree or deed from the commissioner to Chiles; this part of the prayer cannot, therefore, be granted. The next is an account for rents and profits ; this can be done as to Chiles, but -cannot as to the others, on our views of the case. The general prayer-is, such other and further relief as the plaintiffs’ case may require.

This is a broad prayer, on which such .relief may- be granted as is not inconsistent with the bill or the specific prayers. 8 Pet. 586. This case is one of an undoubted equitable title to the 700 acres of land, hhd it been pursued in time ; but under the circumstances of the case it is narrowed down tó a claim for the purchase money of the land, held by the defendants under the purchases from South and Chiles, at the price stipulated in their agreement with the latter.

This we think is required by the case of the plaintiffs, as it appears on the whole record, without placing the defendants in any position more injurious to themselves than their answer would authorize.

They pray for a restoration of South’s bonds, and the rescisión of the contract made with Chiles, as the means of enabling them to obtain a decree in their favor. “ Blit should, under all the circumstances of the case, it be their misfortune to lose the land, they claim a just compensation for their lasting and valuable improvements; under such rules and regulations, according to law and equity, as their case may require and justice demand.” To restore South’s bonds and annul the contract with Chiles, would not release them from their trust to Boone for the purchase money agreed tobe paid to South.

The record does not inform us what was the price at which South sold the 600 acres; but if sold at the rate at which Smith bought the 60 or 70 acres, it would, with the interest, exceed the price agreed to be paid to Chiles. Besides, the restoration of South’s bond at the time of their answer, and by a decree of the circuit court, would have bound them to pay the purchase money with interest. In such case the lapse of time would be no bar.

If, by our decree, these defendants hold the lands on the terms stipulated with Chiles, they have the same benefit of their contract with him, as if it had been consummated by a conveyance of the legal title of Hoy, and the equitable title of Thomas Boone ; a position much more favorable to them, than they would be placed in by their prayer for the restoration of South’s bonds, or for mere compention forimprovements.

It is not tobe doubted,that they would have b.een content with the quieting of their possession on paying for the land, on the terms agreed on with Chjles in 1817, on which they.can now hold them, consistently, with the law of the case. Though neither of the parties have prayed for the specific relief which we think they are entitled to; we are of opinion that all have, in substance, submitted their ease to our consideration, according, to the rules and principles of equity : willing to abide such decree.as we shall-think will do justice between them.

This, in our opinion, will be done by giving to both the benefits of the contract with Chiles, which, under all the circumstances of the case, created by construction and implication in equity, a mutual trust; which is executed by one party conveying his title, and the other by paying the purchase money. It remains only to consider the case of Cummins, who purchased from Smeltzer, part of the 400 acres purchased by him from South.

We can perceive no equitable ground of discrimination between this and the other tenants ; the answer of the heir of Cummins admits the purchase from Smeltzer, but makes the same allegation of fraud against him as he did against Chiles.

Yet, like the others, Cummins continued to hold, and his heir still hQlds the land so purchased, without, as appears by the record, having paid any thing for it: like them, too, the heir prays for a dismission of the bill, but in these words: “And hence to be dismissed with her costs, &e., and such other orders as the court shall deem necessary to the equity of her case.” This could not have been intended, nor can it be considered as a peremptory prayer for'dismission, as she would, in such case, hold the land without paying for it; there would be no remaining equity in her case, on which the court could make an order : it must, therefore, he considered as a submission to such decree as the court should deem conformable to the equity of the case.

This, in our opinion, requires that this.defendant should be placed in the same situation as the other defendants, who claim under or by the purchase from South ; they all purchased only an equitable title, and must stand in the place of those from whom they purchased ; each is a trustee by implication, affected by the same mutual trust in equity. Having thus disposed of all the contending claims between the plaintiffs and the defendants, in this very complicated case, acpording to their respective equities between them as contending parties ; we are to consider of the decree to be made between the defendants.

It is within the undoubted powers of a court of equity to decree between co-defendants on evidence between plaintiffs and defendants, 2 Sch. 1 Lef. 712. Its exercise is also within the general prayer of the defendants in' their respective answers; and is called for by every consideration, that requires some termination to long, inveterate, and entangled litigation.

With the whole case before us, and on the fullest investigation of the rights of all the parties, we do order, adjudge, and decree therein' as follows: That so much of the decree of the circuit court as directs the defendant Chiles to convey to the complainants, all his right, title, and interest to and in the premises named in the bill, and to deliver up to the clerk of.said court, to be cancelled, the contract between said Chiles, Hezekiah and George Boone, therein referred to ; also, so much thereof as orders Jones and Fanny Hoy to convey all their interest in the premises, derived from William Hoy ; and so much of said decree as diieets, that if the conveyances so directed shall not be made as ordered, the clerk of said circuit court shall convey to the complainants the interest of the said parties, as by said court decreed; and so much of said decree as orders the defendant Chiles to pay the costs of the suit, with the exception there stated ; also, so much of said deciee as declares that the claim of the complainants is not to be prejudiced by the decree aforesaid, as against any of the heirs of William Hoy, who are not parties to this suit; and so much of said decree as directs the bill of complainants to be dismissed as to the land held by John Evalt within the bounds of Flournoy’s patent; be and the same is hereby affirmed in all things, excepting that part - of said decree which excepts from the deed to be executed by" William Chiles, the interest which he holds under a deed from Green Clay, as to which the said decree is reversed and annulled.

And as to the rest and residue of said decree of the circuit court, the same is hereby-reversed and annulled ; and this court, proceeding-to render such decree as the §aid circuit court ought to have rendered, doth further order, adjudge, and decree— That the said William do, and shall, within six months from this time, convey to the complainants (in the manner specified "in said decree as to the land therein directed to be conveyed by him-) all his right, title, and interest, held or claimed under the deed or conveyance from Green Clay to said Chiles.

That the said Chiles" do, and shall, within the same time, a"s-.sign, transfer, and make over any contract or agreement made between him and any other persons, in relation to the land in controversy in this suit, whereby any right accrued to, or was promised or agreed to be in him, to any part of said land, or any money arising or to arise from any sale or sales thereof; and in like manner to transfer, assign, and make over all such rights to said complainants.

That the said William Chiles do also account to and with the complainants, for any money he may at any time have received from any person or persons, on or by virtue of the sale of any part or parts thereoi; also that he account to and with the complainants for any rents or profits which he-may have enjoyed-or received in or from said land embraced in the patent to Hoy, under the direction of said court.

That a surveyor, to be appointed by said court, do; under their directions, ascertain the quantity of land claimed by the several defendants in this suit, (except William Chiles,) on the western side of the survey in Searcy’s right, designated on the plat of the surveyor, dated 2d October 1831, by the letters A, D, T, U, J, K, M, E, and A; excluding therefrom all the lands within the lines of Flournoy’s patent, and return a plat thereof to said court.

That the bill of the complainants be dismissed, as to all the land claimed by any defendant, east of. the lines on said plat, designated by letters E, M, K, J, U, T; that their bill be dismissed, as to all the land purchased by Nicholas Smith from Jones, lying within the line of Flournoy’s patent, marked on the surveyor’s plat, in page 66 of the printed record, by the letters L, M, N, O.

That possession be awarded to the complainants, by the several defendants, of the land claimed or held by them, respectively, within the lines first herein referred to, as marked in the plat, dated 2d October 1831, and without Flournoy’s line, which has ;not been purchased from or held under South or Chiles, or by any person or persons claiming or holding under them, or either of them, in virtue of any contract or agreement with them or either, by or under whose right, claim, or possession any of said defendants claim or hold any part or párts of said land.

That the surveyor, so to be appointed, do and shall ascertain the quantity of land, now claimed or held by any of the defendants, mediately or immediately, by, from, through, or under South or Chiles, or in virtue of any right asserted or claimed by them, or either, as aforesaid; designating especially the quantity claimed or held by each defendant, or. each class of claimants, under any one person, accordingly as they may hold or claim in severalty, or in common between themselves; and return separate plats thereof to said circuit court.

Whereupon, such of the complainants as are under no legal disability, shall, within such time as the said court shall direct, make, execute, and in due form of law acknowledge and deliver to the said defendants respectively, deeds of general warranty in fee, for the land described in such plats, on said defendants complying with this decree, as hereinafter mentioned : and that such of the complainants as may at such time be under any legal disability to make such deeds, shall, within six months from the removal of such disability, make, execute, acknowledge, and deliver such déeds to the defendants, their heirs, and assigns; or that the said circuit" court, as so authorized by law, may order and direct that such deed or deeds shall be made by such commissioner, as they may appoint to execute the same for and on behalf of the complainants last mentioned.

That the said defendants severally, or each class thereof as aforesaid for themselves jointly, as they may claim or hold, do pay to the complainants for the land conveyed by them, at the rate and on the terms stated in the joint answer of the defendants, to wit, ten dollars for each and every of the four hundred acres purchased by Peter Smeltzer, and the two hundred acres purchased by Nicholas Smith from John South;, to be paid in three equal annual instalments, counting from the agreement with Chiles, assumed to be 1st December 1817.

That the heirs of Nicholas Smith, or the defendants who claim or" hold under him or his heirs, do pay to the complainants at the same rate, and on the same terms, for the sixty or seventy acres afterwards purchased by said Smith from South ; which said complainants. shall convey as aforesaid to the defendant or defendants in possession thereof under Nicholas Smith.

That the amount so to be paid by each defendant, or class of defendants, bear interest. from the time the instalments were' payable respectively, till the time directed by the circuit court, at which the complainants are to make the deeds as aforesaid ; each defendant or class to be liable only for the sum due by themselves, and not for any sum due by other defendants.

That, when the said deeds shall be executed and delivered, the sum due by each defendant or class, principal and interest, shall be paid as follows: one-third whereof to be paid in one year from the delivery of the deed, one-third in two years, and one-third, in three years, with interest from the time they are payable. That the several sums so payable be paid into said court, or to such person or persons as said court by their decree shall order and. direct; and on such terms and conditions as to them shall seem just and equitable. .

That the defendants severally and respectively do, under the direction of said court, account to and with each other for any moneys received by one from the other, or any person or persons under whom they claim or have claimed, for or on account of any purchase-money of any part or parts of the land, now or at any time held or claimed by them or any of them, under or in virtue of any purchase under the title of Searcy.

That such of the heirs of William Hoy as have answered the bill ofeomplainants, do convey to them, in the manner directed in the decree of the circuit court as to Jones and Fanny Hoy, all their right, title, and interest in the land contained within the line of the <plat first herein referred to, being the western part of the survey aforesaid, in right of Searcy. In default of making such conveyance, as is herein directed to be made, by any of the defendants in this case ; then -this court doth further order and di

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