Josiah Lewis, Frances Lewis, and William Rawle, Executors and Executrix of William Lewis, Deceased and the Said Josiah Lewis, Margaret and Louisa Agaid and Lewis Conover, Heirs of Said Lewis, and Richard Willing, Eliza Willing, Thos Willing, and Geo Willing, Heirs of Charles Willing, Deceased Appelliants v. Humphrey Marshall, Jacob Feebeck, Henry Richey, John Fowler, and Others, Appellees

• Decision Date: 01 January 1831
• Citation: 5 Pet. 470,8 L.Ed. 195,30 U.S. 470
• Parties: JOSIAH LEWIS, FRANCES LEWIS, AND WILLIAM RAWLE, EXECUTORS AND EXECUTRIX OF WILLIAM LEWIS, DECEASED, AND THE SAID JOSIAH LEWIS, MARGARET AND LOUISA AGAID AND LEWIS H. CONOVER, HEIRS, &C. OF SAID LEWIS, AND RICHARD WILLING, ELIZA M. WILLING, THOS. WILLING, AND GEO. C. WILLING, HEIRS, &C. OF CHARLES WILLING, DECEASED, APPELLIANTS v. HUMPHREY MARSHALL, JACOB FEEBECK, HENRY RICHEY, JOHN FOWLER, AND OTHERS, APPELLEES
• Court: U.S. Supreme Court

30 U.S. 470

5 Pet. 470

8 L.Ed. 195

JOSIAH LEWIS, FRANCES LEWIS, AND WILLIAM RAWLE,

EXECUTORS AND EXECUTRIX OF WILLIAM LEWIS, DECEASED, AND

THE SAID JOSIAH LEWIS, MARGARET AND LOUISA AGAID AND

LEWIS H. CONOVER, HEIRS, &C. OF SAID LEWIS, AND

RICHARD WILLING, ELIZA M. WILLING, THOS. WILLING, AND

GEO. C. WILLING, HEIRS, &C. OF CHARLES WILLING,

DECEASED, APPELLIANTS

v. HUMPHREY MARSHALL, JACOB FEEBECK, HENRY RICHEY, JOHN

FOWLER, AND OTHERS, APPELLEES.

January Term, 1831

APPEAL from the circuit court of the United States for the district of Kentucky.

The appellants claimed in their bill, under the heirs of Charles Willing, deceased, a tract of land in the state of Kentucky, by virtue of certain entries made in the life time of Charles Willing, with the proper surveyor, on the 27th December 1783, and amended on the 11th and 12th of March 1784; and carried into grant by virtue of legal and valid surveys. This entry was averred to be good and valid. The patent was dated thirty years before the filing of the bill.

The bill states that Thomas Barbour had by and under a void entry obtained the legal title, elder in date, to the title held by Charles Willing, to a large portion of the land included in the patent to Charles Willing, and that the defendants had become vested with the title to the whole or parts of the land patented to Barbour, and are in possession of the same. It prays that those who hold the said land under the elder legal title of Barbour may be decreed to convey the same to them; and for general relief.

The defendants, in their answer, resist the equity asserted by the complainants, and assert that the entries of Charles Willing were void. They set up in addition to the entry of Barbour, other claims and entries, under which they, other than Marshall and Fowler, originally settled and held.

The validity of all that enters was denied by the complainants. These defendants rely upon twenty years adverse possession prior to the commencement of the suit.

Humphrey Marshall resisted the equity claimed in the bill, and asserted in himself a previously acquired title to 12,313 acres, part of the land in contest, under an entry in the name of Isaac Halbert. That he afterwards acquired from John Fowler an interest in Barbour's patent, exhibiting evidence of this asserted title.

He states that for a valuable consideration he had sold and conveyed, under Barbour's title, certain portions of land to his co-defendants; and exhibited the deeds showing the extent of the same, and of the possession of each under the claim of Barbour. That these defendants were found by him in possession, under claims adverse to Barbour's, and he compromised with them, and gave them conveyances.

Thomas Barbour, on the 23d of September 1804, conveyed the 4530 acres, patented by him to John Fowler.

In 1813, Halbert conveyed his title to H. Marshall. Neither Fowler or Marshall at these dates was in possession of any part of the land, under either title, nor has either of them ever been in possession of any part of the interference.

In 1819, Marshall and Fowler entered into a contract, by which Marshall was authorized to sell and convey to persons in possession, the title of Barbour.

In support of the heirship of the complainants, as the heirs of Charles Willing, the patentee, a deposition of William Jackson was taken, who deposed that he was acquainted with Charles Willing, late of Pennsylvania, and that he died in 1798; that Thomas Willing, Richard Willing, Elizabeth Willing, and George C. Willing, were his only children and heirs. Also the deposition of A. G. Bird, the clerk of Christ's Church in Philadelphia; who swore that he has the register book of burials of said church, and copies from said book, an entry which is authenticated, and reads as follows: 'Burial in Christ's Church-yard, 23d March 1788, Charles Willing.'

Richard Willing, of the city of Philadelphia, deposed that he has the family Bible of his father, Thomas Willing, who, he swears, was very particular in entering the names of the births, marriages and deaths of his, the said Thomas's brothers and sisters; and that in said Bible is the following entry or record: 'Charles Willing, son of Charles and Ann Willing, died at Coventry farm, the 23d March 1788, and was interred in Christ's Church-yard.'

The circuit court dismissed the bill, principally on the ground that the statute of limitations of the state of Kentucky, as applied to courts of equity, barred the claim of the complainants

The complainants appealed to this court.

The case was argued by Mr Wickliffe, for the appellants; and by Mr Clarke, for the appellees.

For the appellants, it was contended; that the circuit court erred in dismissing the bill: as, if Fowler had parted with his interest in the land to Humphrey Marshall, then a decree should have gone against all the defendants, and particularly Humphrey Marshall, as time did not operate against the complainant, as to his title, he never having been in the possession of any part of the land.

That the statute did not operate against the complainants' title, as to the defendants in possession, until they acquired the title of Barbour; because, until that title was vested in them, there was in equity no casue of action against them, as to the complainants in this cause.

If the proof in this cause establish the fact that Charles Willing died in 1788, then the complainants are within the saving of the act of 1796; if that act be construed as is contended for, and was decided in the court below.

For the defendants it was argued, that the possession of the defendants was clearly proved to have taken place in 1795, before the death of Charles Willing, who held at the time the title now set up by his heirs, he having died in 1798.

The statute of limitations began to run against the complainants, and their ancestors, the time the defendants' possession commenced. He and his heirs had ten years by special proviso, to institute suit; but failing to do it, were barred: the rule being the same in equity as law.

Being non-residents, the law cast on them the privilege of ten years thereafter, within which to institute suit; they failed to do so. But in 1822 they filed their bill. Not only the ten years from the death of their ancestor were gone, but more than twenty years from the time of taking possession by defendants had elapsed. The consequence was, a total loss of the right of action both at law and in chancery.

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

This suit in chancery was brought into this court by an appeal from the decree of the circuit court of Kentucky.

In their bill the complainants charge, that Charles Willing, under whom they claim, in his life time, made an entry with the proper surveyor, and on the 27th December 1783, and amended the same on the 11th and 12th of March 1784, for 32,000 acres of land, on certain treasury warrants, beginning 1280 poles south west of the Lower Blue Licks, &c. which entry is alleged to be valid, and was carried into grant after a legal survey had been made.

The bill further states, that Thomas Barbour had, by virtue of a void entry, obtained the legal title, elder in date than the patent to Willing, for a part of the land covered by Willing's entry, survey and patent; and that the defendants are in possession of the land, and claim title to it under Barbour's patent and other claims. A release of their title is prayed, &c.

The defendants in their answer insist, that Willing's entry is void; and other claims than Barbour's are asserted, under which the defendants, except Marshall and Fowler, originally settled.

Marshall sets up a title in himself, of elder date, under an entry in the name of Isaac Halbert, for 12,311 acres. That he afterwards purchased an interest in Barbour's patent from Fowler, and conveyed to his co-defendants. These deeds were executed several years before the commencement of this suit.

The entries under which the...