Stuart v. Luddington

• Decision Date: 26 March 1823
• Citation: 22 Va. 403
• Parties: Stuart v. Luddington
• Court: Virginia Supreme Court

22 Va. 403

Stuart v. Luddington

Supreme Court of Virginia

March 26, 1823

This was an appeal from the Staunton chancery court.

The following is the case presented by the record:

In the year 1784, Patrick Lockhart obtained patents for two tracts of land, one of 400 acres, and the other of 449 acres. The first was granted to him as assignee of John Tillery, in whose name the survey was made; and the second, in his own right. These two tracts did not actually join each other, (as the appellee contended,) but left a slip of land between them, containing 45 acres, which was vacant. The appellee Luddington, became entitled to this vacant land, before the year 1793, by regular entry founded on treasury warrants. Lockhart having contracted to sell a part of his 449 acre tract to Reider, a survey was made by the county surveyor, in company with Lockhart and Luddington, when Lockhart acknowledged, after some dispute, that his patents did not cover the said land which had been taken up by Luddington as vacant land; and the surveyor gave it as his opinion, that Lockhart's patent did not give any title to the said land. The lines were run according to this idea, and Lockhart assented. Lockhart made a deed to Reider, without interfering with the said land. In consequence of this, Luddington went on to perfect his title to the said land; and having surveyed it, sold it to a certain Eli Perkins, before a patent was issued for it, and made himself responsible for the title. Perkins was put into the peaceful and undisputed possession of the said land. A patent was afterwards issued to Perkins as the assignee of Luddington. Perkins afterwards sold the land to Correll, and Correll sold it to Nicely.

Some years after the deed to Reider, Lockhart sold the 400 acre tract to Stuart. Stuart conceiving that his deed covered the said land, instituted an action of ejectment against the said Nicely, then the tenant in possession. This suit was decided in favor of the said Stuart, who turned out the said Nicely by a writ of possession.

Luddington filed a bill against Stuart, Nicely and the heirs of Lockhart, praying that an issue might be directed, to ascertain what is the real boundary of the patent for 400 acres; and that on the trial, the verdict and judgment in ejectment, might not be read in evidence, on account of some alleged irregularities at the trial; that Nicely might be re-instated in the land from which he had been ejected, and be paid the intermediate rents and profits; and that he might be forever quieted in his possession against the claim of the said Stuart and of the said Lockhart's heirs.

Stuart answered the bill, relying on the judgment in the ejectment and denied that he had any knowledge of the plaintiff having ever made a survey of the 449 acre tract, in company with George Reider. He declared his disbelief of the assertion that Lockhart had yielded his right to the plaintiff, & c.

A deposition in the cause, confirms the statement of the bill concerning Lockhart's declaration at the survey, that his patent did not cover the land in dispute, and therefore he gave it up.

The chancellor decreed in favor of Luddington, on the ground of Lockhart's relinquishment of his claim to the land in dispute; in consequence of which, Luddington had proceeded to perfect his title, and improve the land. But as it was doubtful whether Stuart, who purchased from Lockhart, had notice of the said relinquishment before his purchase, he directed an issue to try whether he had such notice; whether on the day of the purchase, Luddington, or any person claiming under him, was in actual possession of the said land; and whether, on that day, or at any time previous, Stuart had notice that the plaintiff or any one deriving title under him, claimed the land in controversy, under the entry set forth in the bill.

The jury rendered a verdict, that on the day of the deed from Lockhart to Stuart, the latter had notice of the agreement set forth in the bill, respecting the relinquishment of Lockhart's claim to the land in controversy, that on the same day, the purchaser from Luddington of the land in question, was in actual possession of the said land; and that on the same day, the said Stuart had notice that the plaintiff Luddington claimed the land in controversy, under the entry set forth in the bill.

The chancellor made a final decree, that the land should be restored to the defendant Nicely, who claims under the plaintiff, to have his...