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January 1, 1831


APPEAL from the chancery side of the circuit court of the United States for the district of Kentucky. In that court, Joseph Stith, the appellee, filed a bill for an injunction to stay perpetually proceedings by the appellants, on a judgment obtained by them in an ejectment instituted by them as the devisee of Francis Peyton, against Joseph Stith the appellee. The relief sought by the complainant in the circuit court was founded on the allegation that one Jenkin Phillips, under whom the complainant claimed, made the first entry on the land in controversy; although it was admitted that the plaintiffs in the ejectment held under the eldest patent. The circuit court decreed a perpetual injunction, as to so much of the land as fell within a certain location made under a survey ordered by that court, within the bounds of Jenkin Phillips's conveyed to the complainant. From the decree the respondents appealed to this court. The facts are fully stated in the opinion of the court. The case was argued by Mr Taylor and Mr Jones for the appellants; and by Mr Bibb and Mr Daniels for the appellees.

The opinion of the court was delivered by: Mr Justice Baldwin delivered the opinion of the Court.

The subject of this controversy is a tract of land situated on Kingston fork of Licking creek, and Buck Lick creek a branch thereof. Stith, the complainant below, claims title under an entry made by Jenkins Phillips on the 18th of May 1780, in the following words. 'Jenkins Phillips enters one thousand acres on the south-west side of Licking creek, on a branch called Back Lick creek on the lower side of said creek; beginning at the mouth of the branch, and running up the branch for quantity, including three cabins.

A survey was made on this entry on the 20th November 1795, taking Buck Lick branch, reduced to a straight line as its base, and laying off the quantity in a rectangle on the north west side of Buck Lick. A patent was granted to Phillips on this survey on the 26th of June 1796, who, on the 8th of February 1814, conveyed to Stith 666 acres thereof, including the land in controversy. Stith was then in possession of the land under the circumstances which will be hereafter referred to.

The appellant claimed, under an entry made by Francis Peyton for 1000 acres, a survey on the 9th of October 1784, and a patent on the 24th of December 1785: so that the case presented was of Stith claiming the prior equity against the elder grant, which, it is admitted, carried the legal title. No question arose on the validity of Peyton's entry, as his elder grant was conclusive, unless an equity arose in Phillips, by his prior entry; but the validity of this entry was questioned by the appellant on several grounds, involving no general principles which are necessary to be settled by the court, but only those arising on matters of fact and detail, which have no bearing on the merits of the case.

We entertain no doubt of the validity of the entry; its calls are sufficiently descriptive, according to the well established principles of this, and the courts of Kentucky, and give Phillips the prior equity to the land, which has been duly followed up and consummated by a grant within the time required by the laws of Virginia and Kentucky, without any laches which can impair it.

This entry was much contested, both parties objecting to the survey as executed in November 1795. The circuit court were of opinion that the entry ought to be so surveyed, as to make the line following the general course of Buck Lick, the centre instead of the base line of the survey, and to lay off an equal quantity on each side in a rectangular form, according to the rule established by the court of appeals in Kentucky, in Harding's Rep. 59, 367. 1 Bibb. 79, 107. 2 Bibb. 122. 4 Bibb. 153, 383; and in this court in 2 Wheat. 323, with which we fully concur.

As the survey of 1795, and the one directed by the circuit court, both embrace all the land in dispute about which any contest arises, it is unnecessary to notice them minutely, as in our opinion the entry and survey of Phillips gave him an equitable title which attached to the land, elder than Peyton's, and would entitle the complainant to a decree; unless the case discloses such facts as, independent of the original titles, present a bar to the relief he asks.

It is alleged by the appellant, that one Jeremiah Wilson, in the year 1792 or 1793, came to the land in question within the lines of Peyton's patent, and resided there until the month of March 1795, when he took a lease for five years from the agent of Peyton, and continued to reside there for some years: that from Wilson's first settlement there was a continued uninterrupted possession of the land by tenants and persons holding under Peyton and his heirs, till Stith the complainant took possession as tenant of Peyton's heirs, under an agreement with one Mitchell, who acted as their agent under a verbal authority from some of them; and that he remained there until December 1813, when possession was demanded of him on behalf of the appellants, which he refused to deliver up. Whereupon a warrant of forcible entry and detainer was on their complaint issued by a justice of the peace on the 27th of January 1814, and an inquisition taken on the 1st of February, finding Stith guilty; but that on a traverse of the inquisition in April following, he was acquitted. An ejectment was then brought against him by the appellants, and judgment rendered for the plaintiffs, at the November term of the circuit court, 1816, when the present bill was filed, praying for an injunction against further proceedings on the ejectment, and a conveyance of the legal title to the land recovered. An injunction was ordered. The respondents, in their answer, allege that the complainant was put into possession, as the tenant of their ancestor, by his agent; but afterwards took protection under Jenkins Phillips, with the fraudulent purpose of cheating and defrauding him.

To this answer a special replication was put in by the complainant, averring that he did not enter as tenant aforesaid; and sets up the proceedings of forcible entry and detainer, and his acquittal; and relies on them for farther repication in bar of the allegation. An amended answer was by leave of the court and on terms afterward filed, averring that the complainant rented the land and entered thereon as the tenant of Peyton, and continued to reside as such tenant, until he purchased from I hillips; and that he ought not to be permitted to set up any adverse title, until he would surrender possession to the respondents. They rely on their uninterrupted possession, plead the act of limitations of 1809, as a bar to the relief sought by the bill, and aver that the bill ought not to be sustained, as the complainant is colluding with another, contrary to every principle of morality.

To this amended answer the complainant demurred. 1. Because the act of 1809 was a violation of the compact between the states of Virginia and Kentucky. 2. If the law is not void, the respondents cannot avail themselves of it, as they were not, and the complainant was, settled on and actually in possession of the premises in question, when the bill was filed; holding and claiming under the title set forth in his bill. 3. That the respondents had not the actual and continued possession for the number of years required by the law, next preceding the filing of the bill, but were ousted and possession held by complainant. 4. That the complainant and respondent were in actual litigation, in the action of ejectment of their relative rights under their titles, on the 1st January 1816, and long before, and until the filing of this bill.

On these pleadings, and a great mass of depositions taken in the cause, the circuit court rendered a decree for the complainant. On a careful examination of the whole record, we are abundantly satisfied that the appellants have fully established the fact of the tenancy of Stith, at the time he entered on the land. It is positively sworn to by three witnesses, and contradicted by none. His demurrer to the amended answer admits it most distinctly; as well as the continuance of the tenancy down to his purchase from Phillips. If this part of the case rested only on the evidence in the cause, unsupported by the demurrer, we should require nothing more to satisfy our minds; but connected with the solemn admission on record, it presents a case cleared of all possible doubt.

The agreement by which he rented the land, was for one year, at a rent of twenty dollars, payable in November 1811. By continuing in possession, he remained a tenant from year to year, his possession being in law the possession of Peyton or his heirs, with all the relations of landlord and tenant subsisting between them in full force.

It appears that Stith refused to surrender up the premises, on a demand made by the agent of Peyton, in December 1813; in consequence of which he instituted a proceeding before a justice of the peace, in pursuance to the law of Kentucky relating to forcible entry and retainer. 4 Littell's Laws 182. This law contains provisions similar to the statutes of Richard III, adopted or substantially re-enacted in all the states; and authorizes the same proceedings against tenants, who, after the expiration of their term, refuse to restore the possession to the landlord.

On this proceeding an inquisition was found against Stith, on the 1st of February 1814; but he was acquitted on a traverse tried in April following. The record does not state explicitly the object of this process, whether it was to proceed for the forcible entry or only for the detainer: the warrant is in the form directed by the second section of the law, embracing both; which are charged as having been committed on the 22d of December 1813. This, connected with the proof in the cause, and the admission of the tenancy of Stith in his demurrer to the amended answer to the bill, leaves no doubt that the proceeding was against him as a tenant holding over, and coming within the provisions of the 16th section of the law. This is the more apparent when there appears no evidence, that prior to the purchase from Phillips, eight days after the finding of the inquisition, Stith had done any act disavowing his tenancy, except the refusal to surrender possession. Thus considered, the case is an unsuccessful attempt by a landlord to recover possession from an obstinate tenant; whose refusal could not destroy the tenure by which he remained on the premises, or impair any of the relations which the law established between them. The effect of the acquittal extended no farther than to deprive the landlord of the benefits expected from this process, and turn him round to the ejectment which he afterwards brought. The judgment on the acquittal, concluded nothing but the facts necessary to sustain the prosecution, and which could be legally in issue. If a case is made out within the 16th section of the law, it declares 'the tenant shall be adjudged guilty of a forcible detainer;' and this was the matter to be inquired into. Title could not be set up as a defence; Stith could not avail himself of the purchase from Phillips; a judgment for either party left their rights of property wholly unaffected, except as to the mere possession; and the acquittal could only disaffirm the forcible detainer, as nothing else was in ...

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