Ambrose Walden and Others, Appellants v. Henry Bodley and Others, Appellees

• Decision Date: 01 January 1840
• Citation: Ambrose Walden and Others, Appellants v. Henry Bodley and Others, Appellees, 39 U.S. 156, 14 Pet. 156, 10 L.Ed. 398 (1840)
• Parties: AMBROSE WALDEN AND OTHERS, APPELLANTS, v. HENRY I. BODLEY AND OTHERS, APPELLEES
• Court: U.S. Supreme Court

39 U.S. 156

14 Pet. 156

10 L.Ed. 398

AMBROSE WALDEN AND OTHERS, APPELLANTS, v. HENRY I. BODLEY AND OTHERS, APPELLEES.

January Term, 1840

ON appeal from the Circuit Court of the United States for the District of Kentucky.

This case was submitted to the Court by Mr. Underwood, for the appellants; and by Mr. Crittenden, for the appellees, on the argument in the preceding case of Walden vs. Craig's heirs et al.

Mr. Justice M'LEAN delivered the opinion of the Court.

This is an appeal from the decree of the Circuit Court of Kentucky.

Bodley and others filed their bill in the Circuit Court, representing, that on the 17th of October, 1783, an entry was made in the name of Henry Crutcher and John Tibbs for ten thousand acres of land, as follows: Henry Crutcher and John Tibbs enter ten thousand acres of land on a treasury warrant, No. 18,747, as tenants in common, beginning at a large black ash and small buckeye, marked thus, J. T., on the side of a buffaloe road, leading from the lower Blue Lick, a N. E. course, and about seven miles N. E. and by E. from the said Blue Licks, to a corner of an entry of twenty thousand acres, made in the name of John Tibbs, John Clark, John Sharp, David Blanchard, and Alexander M'Lean, running thence with the said Tibbs & Co.'s line due east, one thousand six hundred, poles; thence south, one thousand poles; thence west, one thousand six hundred poles; thence north, one thousand poles, to the beginning, for quantity.

That in 1790, a legal survey having been executed, a patent was obtained in the names of Robert Rutherford, assignee of Henry Crutcher and Willoughby Tibbs, heir at law of John Tibbs, deceased, in 1790. That by several mesne conveyances the above tract was vested in the complainants.

The complainants represent that Ambrose Walden, the defendant, on the 22d May, 1780, entered one thousand three hundred thirty-three and one-third acres of land on the east side of Jacob Johnson's settlement and pre-emption, on the waters of Johnson's Fork, a branch of Licking, to include two cabins on the north, side of said Fork, built by Simon Butler; and to run eastwardly for quantity. This entry was surveyed the 29th November, 1785, after which a patent was obtained.

The bill charges that this entry and survey are void for want of certainty, & c. And that Lewis Craig purchased of Simon Kenton, who was the locator, and claimed one-third of the land entered for his services; which, being laid off, Craig sold several small tracts by metes and bounds, to Jonathan Rose, William Allen, and Charles Rector. That Rose sold a part of his purchase to Abraham Shockey; and Allen a part of his, to Amzey Chapin.

And that Walden, alleging he had satisfied the claim of Kenton as locator, commenced two actions of ejectment in the District Court of the United States for Kentucky, and obtained judgments against the purchasers under Craig. That Shockey and Chapin, knowing the title they held under Craig by purchase from Allen and Rose, was inferior to that of the complainants, became their tenants. That on the 30th October, 1801, the complainants entered into an agreement with Lewis Craig, with the assent of Rose and Rector, for the land they had purchased, and deeds were made to them by the complainants. Shortly after this, Allen sold his land to Abraham Drake, to whom the complainants made a deed.

That the complainants, Bodley and Pogue, purchased Shockey's claim to the land he had bought of Rose, and on which he had erected a valuable mill. And that they still held the legal title to that, and the land purchased by Chapin of Allen, and to a considerable part of the interference of their claim with Walden's.

That twelve years after Walden obtained his judgments he issued writs of habers facias, which were set aside on the ground that the demises had expired. That in 1824, the demises were extended, without notice to the tenants, fifty years. That Rose, Rector, and Allen, and those claiming under them, had possession of their respective tracts of land by metes and bounds, as purchased from Craig, and held under the title of Bodley and Company, for more than thirty years, adversely to Walden. That Shockey and Chapin, and those holding under them, have had possession for near the same length of time, &c.

The complainants state that Walden never has had possession of any part of his survey, except two hundred acres conveyed by him to Robert Pogue, by proper metes and bounds; about one hundred and fifty acres of which was held by Carter: and that the complainants have made valuable and lasting improvements on the land, for which they require pay, if the title should be found in Walden.

And they pray an injunction, &c. which was granted.

The complainants afterwards amended their bill by stating that Thomas Bodley and Robert Pogue, at the Fleming Circuit Court of Kentucky, in March, 1825, in a suit in Chancery against the unknown heirs of John Walden, deceased, and others, obtained a decree for the whole of Ambrose Walden's survey, except the one hundred and fifty acres owned by Carter; and except so much of John Walden's elder survey of one thousand six hundred sixty-six and two-thirds acres, as was then in the possession of Ann Thrailhild, and the heirs of Jeremiah Proctor, deceased.

And the complainants further state that the tract of one thousand three hundred and thirty-three and one-third acres of Walden, interfered with an entry of twenty thousand acres, made the 31st July, 1783, in the names of John Tibbs, John Clark, John Sharpe, David Blanchard, and Alexander M'Lean, with the proper surveyor; sixteen thousand acres of which were surveyed and patented in the name of the complainant Bodley; and this entry is charged to be paramount to that under which Walden claims.

Walden, in his answer, states, that he obtained judgments against the complainants, who are tenants on the land, by virtue of his legal and better title; and that he has been a long time delayed by the complainants from obtaining the possession of the land recovered.

He admits that some improvements have been made on the land; but alleges that waste has been committed, and that rents and profits would more than compensate for the improvements. He states that he brought his suits in ejectment shortly after the adverse possession was taken; and he relies upon the dismissal of certain injunction bills, filed by the complainants, as a bar to the present suit.

He knows nothing of the entries, surveys, and patents, set forth in the bill, or of the sales and conveyances stated; and he requires proof of the same. He insists on the validity of his own entry; and denies that Kenton, as locator, was entitled to any part of it, as he was paid in full for his services in locating the land. He denies all fraud; and prays the benefit of his judgments at law.

By agreement of the parties in the Circuit Court, 'the record and proceedings of the Fleming Circuit Court were filed, and that cause was entered upon the docket, for further proceedings in this Court. And that in the suits for trial, Thomas Bodley and others against Ambrose Walden, and Clark's heirs against Ambrose Walden, and also the one by Duncan's heirs against Walden, should be entered on the docket, and stand for hearing at the ensuing term, and be decided at the same time; they all being connected with the present controversy.'

Bodley and Pogue having died, at November term, 1833, by consent, the suit was revived in the names of their heirs and representatives; and a guardian ad litem was appointed to certain infant heirs.

A motion is made by the defendants in the appeal, to dismiss it, on the ground 'that it is an appeal from several distinct decrees, in several separate suits, which are attempted to be united in this appeal; when there is no such record filed as is described in the appeal and citation thereon.'

In the decree of the Circuit Court, it is stated, that by consent of the parties, the suits above named were to be heard at the same time; and the papers and pleadings filed in one case should be considered and have full effect in all the cases, to enable the Court to decide the controversies in all the cases on their respective merits.' And it was expressly agreed, 'that the bill, answers, and orders, the entries, surveys, and patents, in the case of Bodley and Pogue, should be sufficient, without recording the whole suits and papers in each of the cases; and that in the event of either party appealing, the clerk may copy all the papers in all the records; and that when they are so copied and certified, the transcript shall have the same effect as if there were full and separate records made out in each and all of the cases: and this agreement was declared to be entered into, with the leave of the Court, to avoid expenses in the cases, as they all involve the same questions.'

These agreements cover the apparent irregularities in the record, as it regards the decrees and the proceedings in the different cases stated; and obviate the objections on which the motion to dismiss is founded.

And a further motion is made, to dismiss the appeal as to all the parties named in the citation, who are not parties to the decrees.

The names in the citation are found on the record, as parties to one or more of the several decrees entered. It is very clear, that the parties to the decrees only can be made responsible for the costs of this appeal.

Before the decrees were pronounced in the Circuit Court, by consent of the parties, it was entered upon the record, that every agreement or admission on file, for the preparation of any one of the cases for hearing, shall extend to all of them. And it was admitted, that the complainants were respectively invested with the titles under the entries of Peter Johnson and Tibbs, and Clark and Tibbs, and Crutcher, as alleged in their several bills. And it was agreed, 'that the Court should give a final decree, without further...