Under the peculiar-circumstances of this case, I am constrained to state, as succinctly as I can, the reasons why I dissent from tne opinion just delivered.
The facts out of which this controversy arose, are as follows: Reuben Searcy being-entitled to a-settlement and pre-emption of fourteen hundred acres of land, in the settlement of Kentucky, on the waters of Licking, employed John Martin for one-half the land to perfect the title. On the 24th September 1781,,for a valuable consideration, Searcy sold seven hundred acres of this land to William Hoy; executed his bond for a title; and, at the same time, assigned to Hoy the plat and certificate of survey,. which enabled him, in 1785, io obtain a patent for the whole tract in his own name.
But before the emanation of the patent, in the month of December 1781, William Hoy assigned Searcy’s bond to George Boone, and bound himself, his heirs, &c., as sureties, &c. And on the.30th April. 1783, George Boone assigned the bond to Thomas Boone, whose heirs prosecute this suit. .
Thomas Boone, being a citizen of Pennsylvania, gave a power of attorney to George Boone, of Kentucky, dated 1st October 1787, which authorized him, in the name of Thomas Boone, and for his use, “ to ask, demand, sue for, and recover of and from Major William Hoy, of Kentucky settlement, a deed or-other lawful conveyance valid in law, for seven hundred acres of land in or near the waters of Hinkson and Stoner, &c.; and the attorney was authorized to appoint, &c., and to- do every thing necessary in the premises,” &c.
On the 6th August-1792, George Boone, as the attorney in fact of Thomas Boone, assigned Searcy’s bond to John South, the executor of William Hoy, who bound himself to cause Hoy’s heirs to convey, so soon as they should become of age, .the seven hundred acres to Boone, &c. But on the 23d December 1T9Í, before this assignment, South sold four hundred acres of the land to Peter Smeltzer, and bound himself with Walter Carr and John Glover, in the penalty of a thousand pounds, to make a deed for the same, so soon as the heirs.of William Hoy, who, was then deceased, should become of age. . And on the 26th *236August 1794, South sold two hundred acres of the same tract to Geoí ge Pope, and bound himself in the penalty of five hundred' pounds, to make a deed when Hoy’s heirs- should all arrive at full age. This last-bond, in thp spring of 1798, was purchased by, and assigned to Nicholas Smith, who shortly afterwards purchased from South the residue of the tract, supposed to contain sixty or seventy acres.
On the 30th November 1802, Thomas Boone made an agreement with his uncle, Hezekiah Boone, of the state of Tennessee, to sell to him the whole of this tract of land, for seven hundred pounds. But Hezekiah Boone and his heirs had the option of taking the land or not, within four years from the-time of the contract; and the contract was'to be binding if he should make known his determination to take the land and pay for it within the four years. But there is no evidence that Hezekiah Boone made known his determination, within the time limited, to take the land ; or that he has, at any time, paid the whole or any part of the consideration.
On the 30th October 1817, Hezekiah Boone, and George Boone as attorney for Thomas, entered into an agreement with William Chiles, and delivered to him the papers they held respecting the above land; and Chiles was to have the free use them, for the purpose of coercing the title to the land, if it could be recovered ; and if not, he was to obtain the value. And Chiles was to use diligence in recovering the. money or obtaining the title ; and the proceeds of the suit, whether land or money, were to be divided between Chiles and Hezekiah Boone.
Shortly after this contract was entered into, Chiles, having obtained from- George Boone the bond given him by South, which bound him to convey the land to Thomas Boone; so soon as Hoy’s heirs could be compelled to make a deed ; called on Peter Smeltzer’s heirs, who held the bond of South, Carr, and Glover, and representing to them that he was the rightful owner of the land, obtained the bond ; and, also, he obtained the bond for the two hundred acres given by South to Pope, and by him assigned to Smith; which bonds he delivered to Benjamin South, the executor of John South, who was deceased; together *237with the bond given to George Boone, by. the deceased; and obtained from the executor, possession of Searcy’s bond and the assignments. The assignment of George Boone, as the attorney of Thomas, was then erased; and the contract between South and the tenants was cancelled. And the purchasers under South, purchased the land from Chiles, and bound themselves to pay for it ten dollars per acre.
At the August term of the Bourbon circuit court, in the year eighteen hundred and eighteen, Chiles brought an action of ejectment, in- the name of Hoy’s heirs, to recover possession of the land. The tenants having been served with notice, appeared and defended the suit; but a verdict was found against them, and a judgment was entered on the verdict.
On the 26th January 1818, Chiles filed a bill in the Bourbon circuit court in the name of himself, Hezekiah Boone, George Boone, and Thomas Boone, against the heirs of Hoy for a title. In this bill, Chiles stated that William Hoy and John Sapping-ton, and Parthenia his wife, late Parthenia Hoy, had conveyed their interest to him. And he sets up the contract with Hezekiah Boone, as the ground for a decree in his favor, under Searcy’s bond, andthe assignments made thereon; The assignment by George Boone to South, is represented as inoperative and void ; as George Boone had no power, as the attorney of Thomas Boone, to sell or transfer the title to the land. The heirs of Hoy and others, who were made defendants, answered the bill. And afterwards, at August term 1821, the court decreed that the complainant, William Chiles, w.as entitled to a specific execution of the contract horn Hoy’s heirs; and that, if the defendants did not execute a conveyance in pursuance of the decree, on or before a time specified, then, that Thomas P. Smith, as commissioner, under the statute of Kentucky, should execute it. And afterwards, on the 7th January 1822, the heirs of Hoy not having executed a conveyance for the land, in pursuance of the decree, the deed was executed in due form by the commissioner.
In April 1827, this decree of the Bourbon circuit court, was brought.before the court of appeals of Kentucky, and jeversed, *238for want of proper parties; and the cause was remanded to the circuit court for further proceedings.
The heirs of Thomas Boone filed their bill in the circuit court of the United States on the 25th January 1823, at first against Chiles, Hezekiah Boone, George 'Boone, and the tenants who occupied the land ; and represented that the bill filed by Chiles, in the name of Thomas Boone and others, against the heirs of Ploy, was a fraudulent proceeding; and as Chiles, under the decree,- was supposed to be invested with the legal title,- a decree for the title was prayed against him.' And after the reversal of the decree of Bourbon circuit court, such of the heirs of Hoy, as were found within the jurisdiction of the court, were made parties.
The tenants answered and relied upon lapse of time, their purchase under South, and the fraud of Chiles, in their defence. Chiles also filed his answer, setting up his tille, and also' Fanny Hoy, and Jones Hoy, the only heirs of Hoy who were made parties to the bill, who admitted the right of the complainants.. The material parts of the answers will be noticed, more particularly, undqr the appropriate points which arise for consideration.
There seems to be no question as to the genuineness of Searcy’s bond, and the assignments made upon it; but it is insisted that Searcy should have been made a party.
The bill asks no decree against Searcy. By the assignment of the plot and certificate, he enabled William Hoy to obtain the patent in his own name’; and this was equivalent to a conveyance-of the land, in discharge of the bond. Hoy, therefore, could have no demand upon Searcy, and of course the assignee of Hoy could have none against him. He was, therefore, not a necessary party. The complainants, under the assignment of Hoy, pray a divestiture, of the title from his heirs; and as between these parties, there can be no doubt of the equity of the complainants. Indeed, the heirs of Hoy do not controvert the right of the complainants.
In the argument, it was insisted, that the-seven hundred acres claimed by the complainants, are not so specifically described in *239the bill, as to enable the court to decree, in pursuance of the prayer, a specific conveyance.
Williafn Hoy obtained in his own name a patent for the fourteen hundred acres;' and it appears there is a surplus of more than five hundred acres. The bond of Searcy to Hoy Was for seven hundred acres., and- Hoy w.as to take his first choice out of the whole tract; and it appears that there does not remain of the entire tract, undisposed of, or not covered by paramount claims, more than will satisfy the above bond. And in addition to this consideration, the heirs of Hoy may be safely decreed to convey an undivided interest in the land, to the extent of the complainants’ rights : and, if necessary, the complainants, under such a decree, being, tenants in common with the heirs of Hoy, or those who hold an interest in the land, could have partition made. There is no want of certainty as to the identity of the entire tract.
As to the claim of. Chiles, except under the deed of Newland and wife, I admit that it cannot be Sustained. Hezekiah Boone, .^vho sold to Chiles, had no interest to transfer. His contract with Thomas Boone was a conditional one, and the conditions were not performed. No part of the consideration was ever paid, nor did Hezekiah Boone signify his determination to take the land within the four years limited ; and failing to do this, the contract upon its face was not to be binding.
The assent which George Boone, as attorney in fact for Thomas Boone, gave to the contract, made between Chiles and Hezekiah Boone, was an extraordinary procedure on his part. And it is sufficient to say, that he had no power to sell the land, much less to consent that Chiles and Hezekiah Boone should divide between them the land or the money, whichever should be recovered. George Boone, as the attorney of Thomas, had power to authorize Chiles to act as attorney or agent in endeavoring to recover the land; but he had no power to dispose' of it in any manner.
As Chiles, by. virtue of his contract with Hezekiah Boone, obtained conveyances of the interest of William Hoy and Parthenia Sappington, wife of John Sappington, two of the heirs of Hoy, *240he must, under the circumstances, be considered -as holding the land in trust for those who have the better equity. In no sense can Chiles be considered as a purchaser of this interest, without notice and for a valuable consideration. But the interest of Newland and wife, which was conveyed to him through Green Clay, rests upon different principles. In my opinion, Chiles must hold this interest as a purchaser from Clay, who was a purchaser from Newland and wife, without notice of the complainant’s equity.
A majority of the judges reject the right asserted under this deed, because the allegation that Clay was a purchaser for a valuable consideration and without notice, is not made with the requisite proceedings in the pleadings, to admit proof of the fact; and, also, because the deed to Green Clay conveys to him no title.
And, first: as to the allegations contained in the pleadings. In his answer to the complainant’s bill, Chiles states that, “ he admits a certain Green Clay bought and received the title of John Newland and wife ; and discovering this to be the fact, he caused the said Green Clay to be znade a party to the bill in the Bourbon circuit court, charging him to be a guilty purchaser, knowing of the equity arising from the bond of Hoy. But said Clay put in his answer denying notice; and this defendant not knowing evidence to prove notice, bought of hizn his share and paid jhim therefor, and received his.conveyance. This defendant refers to the answer of Clay in the Bourbon circuit court, as part of this answer; and this defendant insists that. Clay was an innocent purchaser for a valuable consideration, without notice, till his'purchase was complete.”
The answer Of Clay in the Bouz-bon circuit court, and which is referred to by Chiles, and made a part of his answer, is as follows : “ This respondent further saith, that it is not true, that to increase the difficulties of the complainant (Chiles,) as charged in said bill, John Newland and wife conveyed their interest, to the lands in controversy to this defendant, &c.; but, on the contrary, this respondent avers that the contract he made with John Newland and Celia his wife, was a bona fide contract, in good faith, for a valuable consideration paid them, without notice, *241or even a knowledge that the complainant, Chiles, had, or any of the other complainants, any claim on said land ; but, on the contrary, this defendant has been informed, and believes, verily, that the claim of the complainant Chiles, is founded in fraud and imposition,” &c.; and “ as to the contract between this respondent and John 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 thereof.”
Although the averments in the bill, filed by Chiles on this point, in the Bourbon circuit court, and the answer of Newland and wife, in the present case, have no connexion with the answer of Chiles under consideration ; yet I will refer to them, as they have been thought to have some influence in the case. In his original bill filed against Clay and others, in the Bourbon circuit court,, Chiles alleges, that, “to increase the difficulty, the said; John Newland and Celia his wife have conveyed their interest in said tract, with others, to a certain Green Clay, who your orators charge had full knowledge of your orators’ claim; and, as they are informed and "believe, executed a contract with said Newland and wife when he received their conveyance, binding himself to make good all the contracts of their ancestor; but yet the said Green Clay refuses to convey to your orator, William Chiles.”
And Newland and wife answer to the bill in the present case, “ that Celia is a daughter of Hoy, and that if ever they had an interest in the land mentioned in the said bills, and now in contest herein, that they have long since transferred their interest therein by a writing amounting to a quit claim, to Green Clay ; but they never conveyed the title, by deed, to him or any one else.”
The answer of Newland and wife eannot be. read in evidence against Chiles, a co-defendant. If this answer, in every respect, were in accordance with the most technical forms, it could not aid a defective averment in the answer of Chiles; nor .can its defects, in any respect, have an unfavorable bearing on that answer. It must rest upon its own language, equally unaffected *242by the answer of Newland and wife, and the original bill filed by. Chiles in the Bourbon circuit court.
As it regards the sufficiency of the answer of Chiles to protect'himself under the title of Clay, who is alleged to be an innocent purchaser for a valuable consideration, and without notice ; it may be remarked, that no exceptions were taken to the answer; but a general replication was filed, or considered as filed.
In the case of Harris v. Ingleden, 3 Pier Williams 95, it is said that, “ notice and fraud must also be denied generally, byway of averment' in the plea, otherwise the fact of notice or of fraud will not be in issue. That, where a defendant, in his plea of a purchase for a valuable consideration, omits to deny notice, if the plaintiff replies to it, all the defendant has to do is to prove his purchase; and it is not material if the plaintiff proves notice,’ for it was the plaintiff’s own fault that he did not set down the plea to be argued, in which case it would have been overruled.”
But, independent of this consideration, what will constitute a good plea, by Chiles, to protect this purchase under Clay ?
It must appear that the persons who made the conveyance to Green Clay, were seised of the land ; that they conveyed by deed to him, and for a valuable consideration, which was paid and the deed executed, before notice of the complainant’s equity. Mit. Pleadings 275; Hinde 180; 3 P. Williams 281; 1 Vern. 179.
Are not these facts found substantially in the answ'er of Chiles ? It sufficiently appears that Newland and wife were seised; for they are stated to be the heirs of Hoy, in part, to whom the land descended, or was devised. And Chiles avers, that “ Clay was an innocent purcháser, for a valuable consideration, without notice, until his purchase was complete.” His purchase could not be complete in the sense here expressed, until the consideration was paid, and the deed executed. If this be the clear meaning of the allegation, it must be held sufficient. But the averments in the answer of Green Clay, are made a part of the answer of Chiles.
It must be admitted that this answer of Clay is loosely drawn, and without much regard to the forms of pleading. But, although *243Clay speaks of his contract with Newland and wife, it is clear that he refers to a deed of conveyance, as he states it has been recorded ; and, to use his language, it will speak for itself. And he avers that his purchase from Newland and wife was bona fide for a valuable consideration, and without notice.
Now when these allegations are incorporated with- those contained in the answer of Chiles; and the fact, that there was no exception to the answer, are considered; I am inclined to think that the allegations should be considered sufficient to protect the title asserted. The amount of the consideration paid is not specifically stated, but the averment is general: that a valuable consideration was paid, and that before notice.
It must be admitted that the allegations in the answer of Chiles, in relation to this purchase, are not made with technical precision ; and if exceptions had been taken to this part of the answer, they might have been sustained. But the complainants having failed to except, ought not now to insist, and indeed cannot, on the same degree of strictness as to form, as if they had done so. If this were admitted, the defendant would be taken by surprise, and the ends of justice might be defeated. To guard against this, the forms of pleading require exceptions to be taken to matters set up in the defendant’s answer in bar of the plaintiff’s right. If exceptions be waived, and an issue taken on the answer, the complainants cannot object to the matter in • bar, on the ground of the insufficiency of the plea or answer. If Clay was a purchaser without notice, Chiles may shelter himself under a deed from Clay. The estate having been innocently and fairly acquired, and for a valuable consideration, can be conveyed to a person with notice. 1 Atk. 571, 2 Atk. 139, 242; 2 Eq. Cas. 685, 13 Ves. 120, Pre. in Cha. 51. That a decree was loosely entered against Clay in the Bourbon court is of no importance, as that decree has been annulled. If the objection as to the sufficiency of the answer of Chiles, under the circumstances, cannot now be insisted on by the complainants; it becomes important to examine the deed from Newland and wife to Green Clay, and to determine the effect of that conveyance.
I will transcribe the operative words of the deed. “ This in*244denture, made this 23d day of May, in the year 181-4, between John Newland and Celia his wife, of. the county of Madison, and state of Kentucky, of the one part; and Green Clay, of the same county and state afóresaid, of the other part, witnesseth: that the said John Newland and. Celia his wife, for and in consideration of the sum of one hundred dollars, to them in hand paid, the receipt whereof, &c.; have granted, bargained, and sold ; and do, by these presents, grant, bargain, sell, and convey to the said Green Clay, his heirs and assigns forever, all the right, title, claim, and interest which they, the said John Newland and Celia his wife have in and to the real and personal estate of William Hoy, deceased ; and all debts, dues, and demands, rents and profits, either in law or equity, to which they are or shall be entitled, as one of the heirs and legatees of the said William Hoy, deceased; she, the said Celia Newland, wife of the said John Newland, late Celia Hoy, being one of the children and legatees of the said William Hoy, deceased.” To this, covenants of special warranty are added, and also of further assurances, &c.
Can any doubt exist that this deed -conveys to Green Clay what it purported to convey to him, all the- right and title, &c. of the grantors to the real estate of William Hoy, deceased. Celia Newland, under the will of her father, received a certain interest in her father’s real estate, and this interest she conveyed by the above deed.
It is true that Newland and wife, under the will of William Hoy, could receive nothing more than the legal title, their ancestor having, in his life-time, sold and conveyed the equitable title. But, having the legal estate, does any one doubt that they could convey, and did convey to Green Clay, a clear title to the land, if he was a bona fide purchaser, without notice, and for a valuable consideration.
That Clay was a.purchaser of this description is averred, and there are no facts in the case which disprove the averment; and, in al! such cases, the proof of notice or fraud rests with him at whose instance the title is impeached.
The deed of Newland and wife describes with sufficient certainty the interest conveyed. It was the interest which Celia *245Newland received under the will of her father. Thij conveyance, containing all the operative words necessary to c jnvey an estate in fee, and also describing with the requisite cenainty the interest conveyed, must be considered as an operative and valid conveyance in the hands of Clay; who, as before stated, was a purchaser without notice, and for a valuable consideration. I think, therefore, that Chiles, without reference to his knowledge of the facts or his conduct, should be considered as holding this interest against the equity asserted by the complainants.
The counsel for the complainants insisted, that, under the decree of the Bourbon circuit court, Chiles was invested with the legal estate in the land ; and that the legal title, under, the deed of the commissioner, still remains in him, notwithstanding the reversal of the decree by the court of appeals.
The decree of reversal, by the court of appeals, does not require this deed to be cancelled ; nor, in my opinion, was it necessary to annul it. The deed of the commissioner is inseparably connected with the decree; indeed, it is a part of the decree; and must have the same effect as if the statute of the state had provided that a decree should operate as a conveyance.
In this respect the deed is different from a deed executed by a sheriff on a sale on execution, or perhaps a sale under a decree in chancery. A reversal of the judgment does not invalidate the sheriff’s deed; but a reversal of the decree must destroy the effect of the commissioner’s deed ; as in no sense can he be-considered as the agent of the party, but 'as an officer of the court, and as acting strictly under its authority. He.does not, as a purchaser under an execution, pay money on the faith of the sale. The title passes by this deed ; but if the decree, whiéh is the authority of the commissioner, be reversed, the deed must fall with it..
That this is the view taken of the commissioner’s deed in Kentucky, is shown by the proceedings in all case? of reversal. The decree of Chiles was reversed, and the case was sent down to the Bourbon chancery court, with' instructions to amend the bill, and to have further,proceedings. And I presume the cause *246is still pending in that court, and Chiles is praying for a title for the lands embraced by the commissioner’s deed.
In the case of Watts et al. v. Waddle et al. 6 Peters 400, the court say “ the deed executed by the commissioner in this case, must be considered as forming a part of the proceedings in the court of chancery ; and no greater effect can be given to it, than if the decree itself, by statute, was made to operate as a convey-, anee in Kentucky, as it does in Ohio.”
The right set up by the present occupants of the land, against that which is asserted'by the complainants, is the next point for consideration. I shall examine this point with some minuteness. as I cannot assent to the decision made by my brother judges.
Smeltzer, it is proved, took, possession of the four hundred acres he purchased from South .in 17S1 ; and he, or those claiming under him, have been in the possession ever since. And it is proved that Smith took possession of his purchase of two hundred acres in 1798, and- the. additional, purchase of fifty acres shortly afterwards; and he, or those claiming under him, have held possession to this tjme,r The.first question that arises in this, and all similar inquiries is; whether the possession of the occupants was-adverse to the title asserted by the complainants.If the title of-the tenants was not adverse, the statute of limitations cannot operate., nor can. we,by analogy, apply the principles of the statute in the. case. '
• The title set up by these defendants is under South, who claimed under an. assignment of Searcy’s bond by George "Boone, as the attorney- of -Thomas Boone, the ancestor of the complainants. This-assignment by George Boone was not authorized by the power of attorney under which he acted. That power authorized George' Boone “--to ask, demand, sue for, and recover, of and .from" William Hoy, a deed or. other lawful conveyance, yalid. in law,” for the, land ; but he had no power to sell dr convey the title. . This act was void, as to Thomas Boone. In no respect coüld it prejudice his right; for South, taking the assignment, was bound to look to the authority under which it was/piade. -
In the case of Hawkins, Witton et al. v. Page’s heirs, 4 Bibb *247138, the court of appeals say,, “the only plausible objection that can be raised to these conclusions is, that the possession of twenty years, and upwards,.would give a legal estate to the possessor under the equity, notwithstanding the legal title remained in another. This doctrine cannot be maintained. So long as the holder of the equity looked to the legal title-holder for the legal estate, he must be considered as holding under him; and the length of possession enures to the benefit of the legal estate, as against adverse claimants, but did not give the legal estate to the equitable possessor; as between these two, the legal titleholder and the equitable possessor, and by continuing under these circumstances, lapse of time could be no bar, and could not transfer the right of entry to the possessor.” And. in thé case of Gay v. Maffitt, 2 Bibb 507, the court say, “ where one-claims under or through the other, there shall be no adverse possession in such case, sufficient to give a title.” And again, in the same case, page 509, “ if, therefore, rve consider the appellant as having no other title than that, derived from possession, and that his possession has' been changed from an adverse, hostile, into a friendly, possession, it follows, that the statute of limitation does not apply to his case.” And in 5 Littell 318, is laid down, that “ a holding of land-under a bond from the patentee, cannot be considered as adverse thereto.” Other decisions in Kentucky, to the same import, might be cited, but it is unnecessary. That the rule established in Kentucky must govérn the question under consideration, is admitted ; although such rule be different from the general law on the subject.
It is, then, well settled in Kentucky, that a purchaser who enters under a contract, looking to the person in whom the fee is vested for the perfection of his title, does not hold adversely to the legal title.
The legal title to the land in controversy was in the heirs of Hoy; of course the possession-or title of the tenants could not be adverse to them. And is it not equally' clear that,-as the tenants set up a title under an. assignment of Thomas Boone, and claim through him, their title is not adverse to his ; and consequently, their possession is not adverse. Their title, as asserted, *248can be of no validity unless the equity of Thomas Boone, from Hoy, shall be established. They claim under and through Thomas Boone, and not in hostility to him. Their possession, therefore, so far as it rests upon a claim of title, is in no sense hostile to the legal interests of Hoy’s heirs, nor the equitable interests of the heirs of Thomas Boone.
Under such circumstances, no length of time would enable the tenants,,as against Hoy’s heirs, to set up the statute of limitation. So fully is this rule established in Kentucky, that when Chiles prosecuted an action of ejectment in the name of Hoy’s heirs, in the Bourbon circuit court, against the tenants, they did not rely on the statute.
I do not insist that the parties in this case are so situated that lapse of time can have no effect upon their rights; but it is clear that, on the part of the tenants, the statute of limitations cannot be set up as a bar in an action at law; and by consequence, it cannot be applied, by analogy, as a bar in equity. The rule of the statute, in chancery, is adopted on the ground that equity follows the law; and where the law fails, the rule in equity must also fail.
A court'of chancery is said to act oh its own rules, in regard to stale demands, and independent of the statute. It will refuse to give relief where a party has long slept upon his rights; and where the possession of the property claimed has been held in good faith, without disturbance, and has greatly increased in value. But in such a case, the court will give due weight to all the circumstances connected with the claim of title or possession, and the effect of the lapse of time may be obviated, by a great variety of facts and circumstances; which, however, would be unavailable to the complainants, where the statute would bar.
I.will now examine the equity of the tenants in regard to the lapse of time.
It will be observed, that they set up a purchase under John South, the executor of William Hoy, in 1791, when South had no pretence or color of title to the land, except as having married one of the legatees of Hoy; and through her he could claim *249Only a naked .legal title, the equity having been transferred by Hoy in his lifetime.
And afterwards, in 1792, when South obtained the assignment Of Searcy’s bond, by George Boone, as the attorney of Thomas Boone, the assignment was inoperative for want of power in the attorney. This assignment, upon its face, would direct every person who claimed any interest under it, to the authority by which George Boone acted.
Had Smeltzer and Smith, the first purchasers, notice of this defect in the assignment to South ?
In his deposition, Nicholas Smith says “ that he bought a bond of John South, in 1798, for two hundred acres of land, out of the tract in controversy ; and that, shortly after, he purchased from South the - residue of the tract, supposed to be sixty or seventy acres, after satisfying Smeltzer’s purchase of four hundred acres. And, at the same time, he lent South three hundred dollars, which sum was to go as payment for the land; arid if that sum overrun, he was to pay back, and if it fell short, the witness was to pay the balance. He took possession of the land, and has ever since held it, under this purchase; but he afterwards found out that South had no right to sell the land, and brought' suit against him, and recovered back the three hundred dollars.”
The time that Smith ascertained that South had no right to sell the land'does not appear; but the facts stated authorize the inference that this knowledge was acquired by Smith not long subsequent to the purchase. Some time before 1809, it appears South was very much embarrassed, and in that year was confined as a lunatic. The suit of Smith must have been brought before South’s extreme embarrassment, as the money was recovered from him, and in all probability the money was repaid to Smith within five or, at most, six years of his purchase.
Barbara Smeltzer, the wife of-Peter Smeltzer, who purchased the four hundred acre tract, states in her deposition, that her husband made the purchase of South, &c., who claimed the same under the bond from Reuben Searcy to William Hoy, and assigned by Hoy to George Boone; that, at the time they first "settled, John South represented to her husband that he had traded *250tór the said bond, but that they afterwards found out he had not got the bond, but soon afterwards he obtained' it from Gfeorge Boone
John Walton, a witness, states that.he acted as one of the commissioners to divide the -land, agreeably.to the will of Peter Smeltzer, deceased, about the year 1805 or 1806; and that there was conversation at that time, among the heirs of Smeltzer, about South and Hoy’s bond,” &c.
Joseph Steele, a witness, states that he was informed by George Boone, that Smeltzer had notice, before he purchased the land from South, that it belonged to. Thomas Boone. This statement seems not to have been objected to in the circuit court.
James Robinson, a witness, being present when the deposition of Barbara Smeltzer was taken, was astonished to find that a person of her age should describe so accurately Searcy’s bond ’ to Hoy, as to its date, the land called for, &c.
Benjamin Mills, an attorney at' law," who was sworn as a witness, states, in 1826, that many years before, Peter Smith,-and either John or Jacob Smeltzer, and pferhaps Nicholas Smith, applied to him to bring suit for the legal title of the land, and especially for that part described in the bond signed by South... Carr, and Glover; but on examining the title, although the'witness declines making some statements on account of professional confidence, yet he says, substantially, he considered the title wholly defective, under the assignment of South \ and, for .that reason-, declined bringing suit. As the witness left the bar for the bench,-in 1818, and as he speaks of the bond of South, Carr, and Glover, which was given up in 1817 to Chiles; this conversation must- have bee.n prior to that time, and, probably, was several years before it.
But in 1817, Smith, and the heirs of Smeltzer, surrendered to Chiles the bonds they held on South for the -land, and bought the land of Chiles, agreeing to pay him for- it ten dollars per acre.
Chiles having possession of the bonds, of South, vyho was then deceased; rescinded the contract- with his executor, gave up. *251South’s bonds for the land, and received from the executor Searcy’s bond, after the erasure of the assignment by George Boone, as the attorney of Thomas, to South.
Judge Mills, while at the bar, brought an action of ejectment in the name of Hoy’s heirs, to recover possession of this land; but it was dismissed for want of prosecution. Afterwards, in the year 1817, he brought a second ejectment, which was served on the tenants; against whom a final judgment was obtained by the verdict of a jury, defence being made in 1818.
To open a judgment by default in this cause, Nicholas Smith and Jacob Smeltzer swore, that “ they had no expectation that William Chilés would have prosecuted the suit to judgment against them, as they had purchased from him the title óf Hoy’s heirs for the sum of six thousand dollars, nine hundred dollars of which sum théy had paid to him, and that the balance was not then due. They stated they held Chiles’s bond to convey to them Hoy’s, title, and that, when the compromise was made, the suit was not. tobe prosecuted, &c.
In 1820 or 1821, George W. Baylor purchased the interest of Peter Smeltzer’s devisees in the tract of land in controversy ;• and on the 25th of August 1821, received a conveyance for one third of the tract from Anna Maria Smeltzer and her husband. The consideration named in the deed is nine hundred dollars, and the grantors only convey their right, title, and interest, and warrant against themselves and all persons claiming under them. And for the residue of the tract, Baylor holds the bonds of John and Jacob Smeltzer; but what consideration was paid or contracted to be paid does not appear. George W. Baylor having.died shortly after the commencement of this suit, it has .been carried on against his heirs who are made parties, The heirs of Cummings,wh'o are defendants, seem not to be entitled to'any part of this land. It then appears that the heirs and assignees of Nicholas Smith, and the.heirs of Baylor, are the tenants, and the only persons who rely upon the lapse of time and the length of possession to protect them in this case.
James Hutchins, a witness, swears that George'W. Baylor took possession of the land in dispute some time' in April, 1823. *252That he does not remember whether he heard Baylor say any thing, particularly about Boone’s claim, before he moved to the land. But, the witness states, after Boone Engles’ return from Pennsylvania, in 1822, he heard him tell Baylor that he was authorized to investigate Boone’s claim, and that he would have the land.
And William Burr, a witness, says : “before Engles.went to Pennsylvania, he heard him and Baylor have some conversation about the claim of Thomas Boone to the land now in contest. The deponent has not a distinct recollection of what was said, but is under the impression Baylor spoke of an intention to purchase Smeltzer’s land, and that Engles advised him not to do it, because the land belonged to Thomas Boone. He also thinks that Baylor and Engles had some conversation about forming a partnership in the investigation of Boone’s claim.” “ He says, after Engles’ return from Pennsylvania, and before Baylor had removed to the land, Engles and he had different conversations respecting Boone’s title.”
These are the leading facts on which the heirs of Baylor and Smith claim protection of a court of chancery from the lapse of time, and the equitable circumstances of the case.
In the first place, they claim under the same title as the complainants, and not in hostility to it.
South had no right under the assignment of George Boone ; and there is. no evidence that the purchase money was paid by Smeltzer or his heirs to South ; and the amount paid by Nicholas Smith was sued for and recovered from South, after it was known that he had no title to the land. And this must have been within a very few yeai-s after the purchase of Smith, not exceeding ten yeai’s, and perhaps less than five.
That Smeltzer had notice of the want of title in South, is certain, ¡from the depositions of his widow Barbara Smeltzer, and Joseph Steele. She states that, when South sold to them the land he had not the bond of Searcy, but that he afterwards obtained it. With accuracy she detailedthe substance of the bond, its date, and the assignments. Smeltzer, therefore, as she states, was well acquainted with the fraud of Soixtlx, in selling the land *253before he had a title, and this should have put Smeltzer on his guard. He was, no doubt, as well acquainted with Searcy’s bond as his wife, and the assignment of George Boone was evidence upon its face, that unless he acted under a power from Thomas Boone, the assignment was void.
An action of ejectment was commenced, in the name of Hoy’s heirs, to recover possession of the land, which was afterwards discontinued. And afterwards, in 1817, when Chiles, under his purchase of Hezekiah Boone, and having the sanction of George Boone, the attorney of Thomas Boone, to investigate the title, the tenants surrendered the bonds they had on South, although security was given in the one held by Smeltzer’s heirs to Chiles, who cancelled the contract with South, and sold the land to the tenants. It is true, this contract of Chiles is represented to have, been obtained by fraud; but the payment made under it, and the use made of it to set aside a judgment by default in the ejectment suit, show that they had wholly abandoned the claim of title under South.
And, as it regards Baylor’s heirs, they were in possession only one or two years before the commencement of this suit; and their ancestor purchased nothing more than the right of Anna Maria Smeltzer, one of the legatees of Peter Smeltzer, with only a special warranty, and of John and Jacob Smeltzer, the other legatees of the land in dispute ; and the inference is authorized, that the same interest, and no more, was to be conveyed under the title bonds, and this with a full knowledge of the complainant’s equity, and of the total defect of title in the legatees. Can a right thus acquired and asserted be protected by lapse of time ? Does it come, within that salutary rule, which has men adopted to preserve the peace of society, and protect rights long acquired and enjoyed without interruption, against stale demands ? Did not Baylor purchase the interests of Smeltzer’s legatees on speculation ? Knowing the title of the legatees to be defective, or rather to have no foundation on which it could be sustained, did he not purchase it; and, under such circumstances, how can the lapse of time aid him ? If this principle might have been invoked by Smeltzei’s legatees, is the same right transferred to Baylor, who *254purchases the interest of the legatees, without a general warranty, and for a valuable consideration ? This appears to me o have been a purchase that does not draw after it the equitable considerations which were connected with the title of Smeltzer’s lega-, tees; and if it did, I am not prepared, under the circumstances, to say that it is entitled to the protection of a court of chancery.
It appears to me that the purchase was made with more reference to the value of the improvements than the title of the tenants ; and under the expectation that, if the land should- be lost, compensation for the improvements woüld - reimburse the purchase money.
And as it regards the title of those who claim under Nicholas Smith, it seems not to require a much more favorable consideration. The money proved to have been paid by Smith, on the purchase from South, was recovered back again; and the heirs abandoned the claim under South, and purchased from Chiles. He purchased fifty acres of Jones, which is covéred by Flournoy’s patent; and he is protected, under the statute of limitations, to this extent.
I have looked through the cases decided in this country and in England, and Í can find no. instance where lapse of time, under circumstances analogous, to those which belong to this case, has been held sufficient to protect the possession against a clear equitable title.
The presumptions in favor of the tenants, which might arise from lapse of time, are repelled by the facts and circumstances of the case. These must always be regarded as controlling mere lapse of time ; and they are such, in this case, as to convince me that to protect the rights sét up by the tenants would sanction a new'rule, and one that would be dangerous to bona fide claimants. I am, therefore, of the opinion that time, which cures many imperfections'in á meritorious title, and often authorizes the presumption of title where none, in fact, exists; cannot protect the tenants in this case.
That the complainants should be decreed to release their interest to the tenants, under the contract they made with Chiles, -is, to me, a most .extraordinary result of the controversy. I can*255not give my sanction to the principles on which it rests. If the decree enforces this contract, then must lapse of time be abandoned ; for the contract bears date only five or six years before this suit was instituted: and on what -principles such a decree can- be made, in the relation which the parties bear to each other in the suit, and in the present state of the pleadings, I am unable to comprehend.
This .contract is declared by the tenants to be fraudulent; and they have refused, by their whole proceedings in this suit, to be bound by it. They hav.e invoked the aid of a court of chancery to annul and set aside this contract; and, I believe, have taken steps to recover back from Chiles the money they had paid him on it.
But this contract is not only declared by the tenants to be fraudulent and void: the complainants also denounce it as fraudulent. It finds favor in the eyes of no oné but Chiles. And yet, this contract, thus treated by the complainants and defendants, and made by Chiles without a color of right, is made the basis of a decree of this court, which takes from the' complainants, and gives to the defendants, a large estate. Chiles, though the .fraudulent instrument in making this contract, is not permitted to enjoy any advantages under it.
If the complainants had adopted this .contract;’ if they, in any. manner, had sanctioned the contract, by treating Chiles as their agent in selling the land; there would be some ground to decree a specific execution of it. But the complainants ha^fe not sanctioned the conduct of Chiles in making this contract; and so far from seeking any thing under it, have declared it to be fraudulent and void: and yet, in despite of them, it is made the rule by which their rights are decided. I am altogether opposed to the decree on this ground.
As the decree of the circuit court is reversed, it cannot be necessary to say an^ thing respecting the decree which was made respecting the rents and profits. It will be foünd, however, that Hoy had eight heirs; two of whom, Fanny Hoy and Jones Hoy, were defendants in the suit; and that-Chiles had received conveyances from two of the heirs, besides Newland and. *256wife. And as Chiles was decreed to convey his interest, and the two heirs of Hoy, who were defendants, were decreed to convey, also, under this decree; the complainants became vested with four-eighths of the land, and he was made accountable to pay for that proportion of the improvements, and in' the same proportion was held entitled to the rents.
Elizabeth South, whose deed is in the record, .is not a party to the suit, and the court could not act on her interest.