Richard Walden and Others, Heirs and Representatives of Ambrose Walden, Deceased Appellants v. Thomas Bodley Heirs and Representatives, Robert Pogue Heirs and Representatives, and Others Same v. Same

• Decision Date: 01 January 1850
• Citation: 9 How. 34,50 U.S. 34,13 L.Ed. 36
• Parties: RICHARD WALDEN AND OTHERS, HEIRS AND REPRESENTATIVES OF AMBROSE WALDEN, DECEASED, APPELLANTS, v. THOMAS BODLEY'S HEIRS AND REPRESENTATIVES, ROBERT POGUE'S HEIRS AND REPRESENTATIVES, AND OTHERS. SAME v. SAME
• Court: U.S. Supreme Court

50 U.S. 34

9 How. 34

13 L.Ed. 36

RICHARD WALDEN AND OTHERS, HEIRS AND REPRESENTATIVES

OF AMBROSE WALDEN, DECEASED, APPELLANTS,

v. THOMAS BODLEY'S HEIRS AND REPRESENTATIVES, ROBERT

POGUE'S HEIRS AND REPRESENTATIVES, AND OTHERS.

SAME

v. SAME.

January Term, 1850

THESE two cases were brought up by appeal, from the Circuit Court of the United States for the District of Kentucky.

The caues were exceedingly complicated, and cannot be understood without a reference to the following plat.

The history and facts of the case are given so much in detail in the opinion of the court, that it is unnecessary to do more than refer the reader to that opinion, as delivered by Mr. Justice Catron.

It was argued by Mr. Underwood for the appellants, and Mr. C. S. Morehead for the appellees. The only question was, whether or not the Circuit Court had properly executed the mandate of this court, and the arguments of the counsel are noticed with sufficient clearness in the opinion of the court, as well as the facts in the case.

Mr. Justice CATRON delivered the opinion of the court.

These two cases were appeals from the Circuit Court of the United States for the District of Kentucky, sitting as a court of equity. They were in fact one case, and will be treated as such.

The question was, whether the Circuit Court had properly executed the mandate of this court issued after the decision in

a cause between the same parties at January term, 1840, and reported in 14 Peters, 156. The judgment of

this court in the ejectment suit between Walden's lessee and Craig's heirs, involving the same title, settled the questions raised therein, and was final.

The ejectment case will be found in 14 Peters, 147. The present difficulty arose from the execution of the mandate of this court in the chancery suit.

In order to give a clear understanding of the nature of the dispute, it is necessary to refer to the plat, and disembarrass it of all the locations which are unconnected with the present appeal. After explaining the pretensions of the appellant, it will become necessary to give an historical narrative of the case in all its diversified aspects, because the grounds of defence relied upon by the appellee cannot be understood without such an explanation. The dispute was of very long standing. The title of Walden was collaterally brought before this court in 5 Cranch, 191, then directly in 9 Wheaton, 576, 14 Peters, 156, and now reappears in 9 Howard.

The mandate issued in 1840 will be more fully stated hereafter. At present it is only necessary to say, that it commanded the Circuit Court to take such further steps in regard to the putting of Walden in possession of the premises recovered in the ejectment suits as should be conformable to the decree hereby affirmed, and to the principles of equity.

Page 36-Continued.

The appellant Walden complained that the Circuit Court had not put him in possession of the tracts of land marked A, B, and C, which it ought to have done, bounded as follows:——

A. 1, a, b, 4, 5, 6, 11, 1.

B. 15, 14, 5, 6, 11, 15.

C. 11, 30, 31, 32, 11.

Each of these pieces of land had its separate defence. A brief explanation of the plat now becomes necessary.

The double lines 23, 24, 25, 26, are the lines of Walden's entry, as the same were laid down by a surveyor under the order of this court, and therefore Walden could recover nothing outside of them.

7, 8, 9, 10, are the lines of his original patent, as laid down by him.

The dotted lines 1, 2, 3, 9, represent the locator's or Craig's part. But as these lines include land outside of the entry, they must be made to conform to it, and therefore assume an irregular figure, running from 1, a, b, d, c, 2, 1.

It will be explained hereafter upon what grounds the defendants claimed to hold, A, B, and C on the accompanying plat.

To return to the history of the case.

1780, entry by Walden.

1783, entry by Bodley's grantors.

1785, survey by Walden.

1790, survey by Bodley's grantors.

In March, 1797, Walden brought an action of ejectment for a tract of land lying on the waters of Johnson's Fork of Licking River in Mason County. The action was brought in the District Court of the United States for the Kentucky District. The declaration stated a demise for the term of ten years from the 15th day of August, 1789.

In March, 1798, Lewis Craig and Jonathan Rose were substituted in place of the casual ejector, confessing lease, entry, and ouster.

In June, 1800, a special case was submitted to the court, accompanied with a survey. From these documents, it appeared that a division of the land covered by Walden's patent had been made in February, 1794; that two thirds of it had been assigned to Walden, and the remaining third to Craig, as assignee of Simon Kenton, the locator; and that the defendants in the ejectment were in possession of that part which had been given to the locator.

The case was submitted to the court upon this agreed state of facts.

On the 19th of June, 1800, the court gave judgment for Walden, the plaintiff in ejectment.

In August, 1800, Walden sued out a writ of habere facias possessionem upon this judgment. This writ was arrested by an injunction, and returned unexecuted; and again renewed in 1811, as will be mentioned in chronological order.

In September, 1800, Bodley and others filed a bill upon the equity side of the court, and obtained an injunction. This bill is nowhere found upon the record, and its contents cannot be more particularly stated.

In May, 1809, this bill was dismissed for want of jurisdiction.

On the 5th of September, 1811, the execution which had been taken out by Walden in 1800 was returned, and another writ of habere facias possessionem issued upon the 14th of September.

In the latter part of September, 1811, Bodley and others filed another bill, and obtained a second injunction to stay further proceedings upon the judgment in ejectment.

At May term, 1812, the injunction was dissolved, on hearing on bill, answers, depositions, and exhibits, and in April, 1813, the complainants dismissed their bill.

On the 2d of June, 1812, Walden sued out another writ of habere facias possessionem, which was superseded, on the 8th of June, upon two grounds; namely, that no execution ought to have issued, on account of the lapse of time after the rendition of the judgment, and because the demise laid in the declaration had expired before the judgment was given.

At July term, 1813, the writ was quashed.

In August, 1817, a rule was laid upon the defendants, Craig and Rose, to show cause why the demise in the declaration should not be extended.

On the 22d of May, 1819, Walden took out another writ of habere facias possessionem, which was afterwards quashed by the court.

At November term, 1821, the rule came up for argument, when the court overruled the motion to extend the demise. Walden sued out a writ of error, and brought this judgment up to this court to be reviewed. It came up for argument at February term, 1824, and is reported in 9 Wheaton, 576. This court having expressed its opinion that the motion to extend the demise ought to have prevailed in the Circuit Court, leave was granted by the Circuit Court, at the ensuing May term, to amend the declaration by extending the demise to fifty years.

In March, 1825, Bodley and Pogue obtained a decree against Walden in the Fleming Circuit Court of Kentucky (State court), upon a bill which they had filed against him to prevent him from proceeding further in his action of ejectment. The decree was founded upon the superior equity in the claim of Bodley and Pogue, inasmuch as Walden's survey in 1785 interfered with the prior entry of the grantors of Bodley and Pogue, in 1783.

In 1825, Bodley and Pogue filed a bill in the Circuit Court of the United States, into which court were removed all the proceedings of the Fleming Circuit Court just mentioned. Upon this bill an injunction was granted, prohibiting Walden from proceeding further under his judgment in ejectment. Walden answered, and afterwards filed a cross-bill and an amended cross-bill.

In 1833, the suit was revived by consent, in the names of the heirs and representatives of Bodley and Pogue, who had died.

In May, 1835, Thomas Blair, who claimed under Pogue, filed a petition in the Circuit Court to reverse and annul the order extending the demise, upon the ground that the order was surreptitiously obtained and improvidently made.

In May, 1836, the court overruled this motion to annul the extension of the demise.

On the 18th of November, 1836, Walden sued out a writ of habere facias possessionem for a part of the land claimed in the original ejectment. On the ensuing day, being the 19th of November, the defendant's counsel moved to quash this writ, upon the ground, amongst other reasons, that it was irregular to issue the writ without a previous scire facias, because the judgment had been obtained twenty years before. On the 21st of November, the court quashed the writ.

In March, 1837, Walden sued out a scire facias to revive the judgment. Blair was made a defendant, as tenant in possession. The defendants demurred to the scire facias, and also pleaded nul tiel record. The court gave judgment for the defendants upon the demurrer and the plea, and the case was brought up to this court by a writ of error. It was decided at January term, 1840, and is reported in 14 Peters, 147.

In the mean time, the bill filed in the Circuit Court by Bodley and others, in 1825, had ripened into a decree. After various proceedings, the Circuit Court, at November term, 1834, decreed, that Walden had the superior equity to all the land included within the double black lines, and numbered 23, 24, 25, 26, and that for other lands lying outside of these lines, and within the lines of his patent, he should execute deeds to the complainants.

Upon the subject of damage and waste, rents and profits, and...