#### Early v. Garland’s Lessee.

October Term, 1855,

Richmond.

Sale of Land — Case at Bar. — in 1809 O T assuming to act as the agent oí M T, sold to M a lot in the town of Lynchburg, and L, from whom M T purchased the lot, conveyed it to M. M T then filed a bill to set aside the sale, and in 1819 the court made a decree setting the sale aside, and directing M to convey the lot to M T. This decree was affirmed in the Court of appeals as far as it went, but the court held that there should have been a decree over in favor of M against C T, and sent the cause back for this purpose. Fending these proceedings M conveyed twenty feet of the lot fronting on Main street to P and ten feet to C, and C purchased the remainder of the lot from R, who had verbally acquired M’s right in the subject; and C had enclosed the ten feet first acquired and twenty feet adjoining that part which he bought of Ras an alley leading from the street to his house. After the case went back. M T filed an amended bill making C a party, and C filed a cross bill to obtain the benefit of M’s rights against C T. In 1831 C died, and the suits were revived in the name of his administrator; and in 1836 there was a decree in the first suit directing a commissioner to convey that part of the lot obtained by C from R to M T, which was done. In 1837 M T conveyed that part of the lot conveyed to him to L, and L conveyed it to G, who died, having devised it to his son the plaintiff.

*In 1835, in a friendly suit between the widow and heirs of C, the alley was allotted to the widow, and after her death to C’s daughter El. In an action of ejectment brought in 1819 by the son of G against the trustee of H for the twenty feet included in the alley. Heed;

i. Same — Adversary Possession — Effect upon Transfer of Title. — If the ground in controversy was in the actual adversary possession of the widow or daughter of C at the time of the conveyance by M T to L or by L to G, these deeds could not operate as a transfer of the legal title,

a. Same — Same—Same.—The fact that M T was not in possession of the ground in controversy at the date of the decree of 1836 or of the deed of the commissioner to him, would not of itself suffice to restrict the operation of the deed to a mere transfer of aright of entry which he could not transfer to another. Nor would the fact of his not being in possession when he conveyed to L, prevent the transfer of the title to L. To prevent the transfer of the title, the possession must have been adversary in another.

3. Same — Decrees—Effect on Those Not Parties.— The suit not having been revived against the heirs of C, they are not concluded by the decree of 1836, upon the principle which binds parties to a judgment or decree.

4. Adversary Possession — Case at Bar. — There being nothing in the amended bill or any other part of the proceedings having special reference to the part of the lot bought of R by C, the decree does not ascertain that C was a purchaser of the lot *pendente lite:*and the defendant is not thereby estopped from setting up an adversary possession anterior to its date.

5. Evidence — Decrees — Conclusiveness of — Case at Bar. — Though the decree was conclusive evidence that such a decree had been rendered, it was not conclusive against the heirs of C that he was a *pendente lite*purchaser.

6. Instructions— Evidence Tending to Prove the Supposed Case.* — When there is any evidence tending to make out the case supposed in an instruction, it is best and safest to give the instruction if it propounds the law correctly.

In the year 1809, Charles Terrill, assuming* to act as the agent and by the authority of Micajah Terrill, sold to Robert Morris a lot in the corporation of Lynchburg, known as *No.*79, and procured from John Lynch, who had sold the said lot to Micajah Terrill, but still held the legal title thereto, a deed for the same to said Morris.

Soon afterwards, Micajah Terrill, who *22was then in the western country, filed his bill in the County court *of Campbell county, on the chancery side thereof, repudiating said sale, and seeking to set the same aside, and obtain a reconveyance of the property to him, and he made the said Charles Terrill, Robert Morris and John Dynch parties to the suit.

The suit remained on the docket of the County court until the year 1818, when, by consent, it was removed to the Superior court of chancery for the town of Dynchburg, where such proceedings were had, that on the 18th day of May 1819 a decree was rendered by said court, disaffirming the sale aforesaid, and requiring Morris to reconvey the land to Micajah Terrill, and to pay the costs of the suit.

From this decree Morris appealed to the Court of appeals; and that court, on the 22d day of November 1823, affirmed the decree as far as it went, but declared it erroneous in not giving Morris a decree over against the estate of Charles Terrill for the amount paid him, with interest, costs, &c.; and sent the case back to the court below, for accounts, &c., and for relief to Morris.

In 1824, this decree of the Court of appeals was entered in the court below, and a decree was rendered by that court in conformity therewith.

Pending these proceedings, or prior to the institution of the suit, (which, it does not appear,) Robert Morris had conveyed a portion of the lot in controversy, fronting twenty feet on second or Main street, to one John Pointer, and another portion, fronting ten feet on same street, to Dr. John J. Cabell; and on the 9th day of September 1823, Dr. Cabell purchased from one Robert D. Coleman, who had verbally acquired Morris’ rights in the subject, the residue of said lot No. 79, the same being contiguous to the ten feet purchased of Morris as aforesaid, and fronting one hundred and thirty-five feet on second or Main street.

After the case came back from the Court of appeals, *viz: in October 182S, the plaintiff, by an amended bill, made Dr. Cabell a party defendant; and some time afterwards, (the record does not show the date,) Dr. Cabell filed in the same court a bill in the nature of a cross bill, referring to the proceedings in Terrill’s suit, and seeking to secure to himself the benefit of Morris’ claim against Charles Terrill’s estate.

The two suits lingered on the docket without final decree in either, until the death of Dr. Cabell in 1834, when they were both revived in the. name of his administrator, Thomas R. Friend; but the widow and heirs of Dr. Cabell were not made parties.

Oh the 22d day of October 1836, a final decree was entered in the two suits, directing, in the first suit, a conveyance by James Benagh, a special commissioner of the court, to Micajah Terrill, of so much of the lot in the proceedings mentioned as had not been conveyed bjr Morris to Pointer and Cabell; and quieting said Cabell and Pointer and those claiming under them, in their respective purchases, and in the cross suit decreeing to Friend, as administrator of Cabell, the balance shown to be due from Charles Terrill’s estate to Morris, &c.

In pursuance of this decree, Commissioner Benagh, on the 29th of October 1836, executed the deed thereby required.

The defendants introduced evidence to prove that prior to the death of Dr. Cabell in 1834, he had enclosed the ten feet lot purchased by him of Morris and twenty feet of the lot purchased by Coleman, forming an alley of thirty feet front on Main Street, and running back to the mansion-house lot of said Cabell. The twenty feet purchased by Coleman, and making a part of the alley, is embraced by the deed from Benagh, commissioner, to Terrill, and forms the subject of controversy. The plaintiff also introduced evidence to prove that the lot had not been enclosed until a *short time before the action was instituted, and that Dr. Cabell did not claim to hold the lot adversely to the title of the plaintiff. The evidence is stated by Judge Dee in his opinion.

After Dr. Cabell’s death, viz: in 1835, a friendly suit was instituted in the Hustings court for the corporation of Dynchburg, by a portion of his heirs at law against his widow and the residue of his heirs, for an assignment of dower to the widow, and a division of his lands among the heirs of said Cabell; and a decree was rendered, by which the mansion-house lot, with the alley aforesaid, was assigned to Harry Ann Cabell, widow of said John J. Cabell, as part of her dower.

Mrs. Cabell died in 1843; and after her death the mansion-house lot and alley aforesaid were assigned by another decree made in another suit between the heirs of Dr. Cabell, to his daughter Henrian Cabell; and in 1846, she, being about to marry Samuel H. Farly, conveyed the same, with other property, to Jubal A. Darly in trust for her benefit.

In the year 1837, Micajah Terrill and wife conveyed to John Dynch the entire lot mentioned in the deed from Benagh, commissioner, embracing the twenty feet of said alley mentioned above as being in dispute.

In February 1837, John Dynch conveyed the same property to Maurice H. Garland; and by his last will, duly recorded on the 13th of October 1840, in the Hustings court of Dynchburg, Maurice H. Garland, after some specific bequests, devised his whole remaining estate to his son, Samuel Garland, jr.

In December 1849, Samuel Garland, jr. instituted his action of ejectment against Jubal A. Farly, for that portion of the alley aforesaid fronting ■ twenty feet on Main street, which is embraced by the deed from Benagh to Micajah Terrill.

After all the evidence had been introduced, the defendant moved the court *23to give to the jury eight ^several instructions; but the court refused to give any except the seventh. It is only necessary to state the first, second and third.

1st. If Micajah Terrill was not in possession of the lot of ground in controversy in the case of Terrill v. Morris & others, at the time of the decree pronounced in said case on the 22d day of October 1836, and at the time the deed from Commissioner Benagh to him, made in pursuance of said decree, was executed, the said decree and deed merely conferred upon said Micajah Terrill a right of entry which he could not transfer to another. And unless he had reduced the said lot of ground into possession at the time he made the deed of bargain and sale to John Lynch on the 14th day of March 1837, the f said last named deed conveyed . no title to the said John Lynch.

2d. If at the time Micajah Terrill executed the deed of bargain and sale to John Lynch, dated the 14th day of March 1837, Mrs. Harry Ann Cabell, as the widow of John J. Cabell, was in the adverse possession of the lot or parcel of ground in controversy, under an assignment of dower or otherwise, the said deed conferred no title on the said John Lynch to the said lot or parcel of ground.

3d. If at the time of the execution of the deed of bargain and sale from John Lynch to Maurice H. Garland, dated the 4th day of February 1838, Mrs. Harry Ann Cabell, as the widow of John J. Cabell, was in the adverse possession of the lot or parcel of ground in controversy, under an assignment of dower or otherwise, the said deed conferred no title upon the said Maurice H. Garland to the said lot or parcel of ground.

The fourth instruction asked, was that fifteen years’ adverse possession under claim of title by the defendant and those under whom he claimed, was a bar to the action. And the fifth was, that the like possession *of John J. Cabell for more than five years, and his dying in possession, was a bar to the action.

There was a verdict and judgment for the plaintiff: Whereupon Early applied to this court for a supersedeas, which was awarded.

Stanard and Bouldin, for the appellant.

Garland and Slaughter, for the appellee.

*

Instructions — Evidence Tending to Prove the Supposed Case. — For the proposition laid down in the principal case that, when there is any evidence tending to make out the case supposed in the instructions, it is best and safest to give the instructions if it propound the law correctly, see the principal case cited and followed in New York, etc., Railroad Co. v. Thomas, 92 Va. 611, 24 S. E. Rep. 264; Chesapeake & Ohio R. Co. v. Anderson. 93 Va. 657, 25 S. E. Rep. 947; Washington, etc., R. Co. v. Lacey, 94 Va. 468, 26 S. E. Rep. 834; Baltimore & Ohio R. Co. v. Whittington. 30 Gratt. 816; Gordon v. The City of Richmond, 83 Va. 439, 2 S. E. Rep. 727; Honesty v. Com., 81 Va. 297; Dickinson v.Dickinson, 25 Gratt. 330; State of W. Va. v. Betsall, 11 W. Va. 729; Michie v. Cochran, 93 Va. 648, 25 S. E. Rep. 884.

In the last-named case the court after approving the rule above laid down said: “It is still nevertheless the duty of the court, before giving the instruction to determine whether there is *any*evidence upon which it may be founded.”

See, in accord, Hopkins v. Richardson, 9 Gratt. 496; Farish v. Reigle, 11 Gratt. 719; Brooke v. Young, 3 Rand. 106.

. In addition to the above authorities, see section-4 of monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

LEE, J.

The only questions material to be considered in this case are those on the first, second and third instructions asked for by the defendant. For if at the time of the execution of the deed from Terrill to Lynch or that from the latter to M. H. Garland the premises in controversy were in the actual adversary possession of those under whom the defendant claims such deed could not operate as a transfer of the legal title and as the plaintiff claims no otherwise than through these deeds, he must fail in this action. On the other hand, if at the time of these deeds or either of them, there was no such adversary possession, then any question upon the statute of limitations is out of the case; for even if the Code of 1849 did not extend -the period of limitation (a question upon which I express no opinion) still to make out the bar the possession must have been adversary for at least fifteen years before the suit and must therefore have been carried back continuously embracing the period of both deeds to the 21st of December 1834: nor is it necessary to enquire whether the right of entry was tolled by descent cast from Dr. Cabell, because if so tolled, yet if the possession were afterwards surrendered, the descent cast would become immaterial, or if it were abandoned the right of entry would be restored as the law will refer the possession to him who hath the right. Clarke’s lessee v. Courtney, 5 Peters’ R. 318, 354; Taylor’s devisees v. Burnsides, 1 Gratt. 165, 191. *Thus the duration and character of Dr. Cabell’s possession become unimportant except so far only as the latter may serve to illustrate the character of the possession of those who came in under and after him.

That Micajah Terrill was not himself in possession of the lot in controversy in the suit against Morris at the date of the decree of the 22d of October 1836 nor that of the deed from the commissioner would not of itself suffice to restrict the operation of the deed to a mere transfer of right of entry which he could not transfer to another; nor although he had not yet taken actual possession himself at the time of his conveyance to Lynch does it therefore follow that no title passed to Lynch. Another element is required to prevent those deeds from operating as transfers of the legal title. The lot must not only have been in the possession of another but that possession must have been under such circumstances and accompanied with such a claim of title as would render it adversary to Terrill. Actual possession by the grantor is not indispensable to give effect to his deed, for if the possession held by another be of a fiduciary character or if its origin and continuance were such as not to amount to a disseizin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Duval v. Bibb, 3 Call 362; Tabb v. Baird, Ibid. 475; Jackson v. Todd, 2 Caines’ R. 183; Williams v. Snidow, 4 Leigh 14. As the first instruction therefore merely supposed the want of actual possession in Terrill without at all referring to the character of the possession of those by whom it was in fact held, the court may for this cause have very properly refused to give it.

The second and third instructions would seem to be unexceptionable in the statement of the rule of law which they undertook to propound, and the only ground upon which the refusal to give them is to be *sustained is either that they presented mere abstract propositions irrelevant and immaterial because there was nothing in the evidence upon which to found the hypothetical case assumed, or that the defendant was in some way es-*24topped or concluded from alleging the possession to have been adversary at the periods referred to. The hypothesis was of adversa^' possession in a party claiming under Dr. Cabell under whom also the defendant claimed both title and possession: and it was not enough that the court should have thought the evidence of the defendant insufficient to .make out such possession or that the proofs which he offered were overcome by stronger and more cogent proofs the other way. Whether adversary possession or not depends upon the fact of possession and the circumstances under which it was taken and held, especially the animus of the party holding and whether with a claim of title or without any such claim. Thus it was a matter proper for the jury and if there was any evidence tending to show possession and that it was of an adversary character not consistent with the plaintiff’s title, the instructions should not have been refused. Bor where there is evidence tending to make out the supposed case however inadequate in the opinion of the court or to however little weight it may be deemed entitled it is best and safest to give the instruction if it propound the law correctly. Hopkins v. Richardson, 9 Gratt. 485; Farish v. Reigle, 11 Gratt. 697, 719.

Now it would seem impossible to say there was a total want of evidence tending to make out the adversary possession supposed. There was such proof however much it may-have conflicted with, other evidence in the case or been overweighed by the opposing proofs of the plaintiff. It was proved that Dr. Cabell enclosed the ground in controversy by a fence which also enclosed another parcel of ground belonging to him, making of the whole an alley thirty feet wide: *that he erected a gate leading from the street into the alley thus enclosed and anothér gate leading from the same into a back lot on which his mansion-house was situated: that he used the ground so enclosed as an alley and wagon and carriage way to his mansion-house lot up to the time of his death and that he occupied a small building that stood on the ground in dispute as a lodging-house for servants. It was in evidence that after his death the ground in controversy was assigned to his widow as part of her dower in his real estate and was used and enjoyed by her as such up to the time of her- death in 1843: that after her death the same was allotted to Mrs. Early, then Miss Henrian Cabell a daughter of Dr. Cabell, along with the mansion-house property, as a part of her share of his estate and had been used and enjoyed by her and her tenants up to the commencement of the suit. It was also proved that the mansion-house lot was so situated and so surrounded by other lots and steep cliffs that the alley consisting of the ground in dispute and other ten feet adjoining was the only practicablé way .to and from it for carriages and vehicles, arid that the small bric,k building on the disputed ground had been removed by the defendant since the suit. One of the witnesses also deposed that M. H. Garland the father1 of the plaintiff- had on one occasion admitted that the line separating the alley of thirty feet from the residue of the lot which was the line claimed by the defendant was the true line between the lot purchased by him from John Eynch and the property belonging to the estate of Dr. Cabell. It is true there was evidence offered by the plaintiff of various acts and declarations of Dr. Cabell tending to show that his possession never was adversary to the title of the plaintiff nor so regarded by himself. The allegations of his answer and cross bill in the case of Micajah Terrill v. Morris, &c., were referred to in this connexion. But however ^persuasive this evidence may have been, still the whole evidence upon the subject was not perfectly reconcilable and it was proper the jury should weigh it and decide upon the controverted fact. Certainty it cannot be said there was no evidence tending to make out the case which the defendant assumed.

But it is said Dr. Cabell was a party in the chancery suit and that the question both of title and possession must be regarded as res adjudicata under the decree of October 1836; and that even if he had never been a party, yet as he was a purchaser pendente lite, those claiming under him are concluded by that decree and thus estopped from setting up any possession as adversary to the title of the plaintiff.

It is true Dr. Cabell was made a party by an amended bill, but he died in August 1834 and his death .was suggested on the record in Bebruary 1835. The case was however never revived against his heirs, so that they cannot be concluded by the decree of October 1836 upon the principle which binds those who are parties to a cause at the time a judgment or decree is pronounced and thus have had opportunity to make full defence. Nor is there anything on the face of the decree to authorize the court upon a bare inspection to hold them estopped from setting up an adversary possession even anterior to its date in a subsequent action. It does not ascertain that Dr. Cabell was a purchaser pendente lite. That question was not in issue in the cause. The amended bill contains no allegation whatever in reference to the twenty feet now in controversy. The purchase which it imputes to Dr. Cabell was of the other ten feet not now in controversy. Nor does it make Coleman, of whom Dr. Cabell purchased the twenty feet, a party or allude to him in any manner whatever. It is true Dr. Cabell in his answer states that he purchased the lot of Coleman during the pendency of the case in the Court of ^'appeals and that Coleman had derived his interest from Morris though he does not state clearly when; but there is nothing more in the whole case upon this subject. This cannot amount to ari estoppel upon the question of adversary possession, in a subsequent action, upon which the court can undertake to pronounce and hold the party concluded. It was but *25evidence to go to the jury as the admission of Dr. Cabell to have such weight as they might deem it entitled to, in common with the other evidence offered of his acts and declarations. The decree was no adjudication of the question whether Dr. Cabell was a purchaser under such circumstances that he and those claiming under him would be bound thereby, nor could it be conclusive upon that question. It was evidence and conclusive of the fact that such a decree had been rendered, but it was not conclusive as against the heirs of Dr. Cabell who were no parties, and whose ancestor the record itself showed was dead at the time it was pronounced, that that ancestor was such a purchaser. Even as against a party a judgment or decree is held to be conclusive only upon what was brought directly in issue and not upon a matter incidentally brought into controversy. Duchess of Kingston’s Case, 20 How. St. Tr. 358, 538; 1 Phil. Ev. 321, Cow. & Hill’s n. 557; Arnold v. Arnold, 17 Pick. R. 4; 1 Stark. Ev. (Phil. ed. 1830), p. 198. And as to those who are no parties though it is always evidence to prove that such judgment or decree was rendered yet it is not so as a medium of proof of ulterior facts upon which it was founded or which may be recited in the record. 1 Stark. Ev. 191 and n; 1 Green1. Ev. $ 527, 538. Of necessity in a subsequent and separate suit against one who was no party to the previous cause, but whom it is sought to hold bound by the judgment as a purchaser pendente lite, resort must be had to proof extrinsic to the judgment that he stood in circumstances *which made the judgment so binding upon him. And although in the record there may be an admission or declaration in regard to the fact it is admitted in evidence against him not as a judgment conclusively establishing the fact but as a deliberate declaration or admission that the fact was so, as indeed it might be admitted for such purpose even in favor of a stranger; and it is to be treated according to the principles governing admissions to which class it properly belongs. 1 Greenl. Ev. § 527, a. In this case it will be noticed the plaintiff introduced Robert Morris as a witness before the jury and sought to prove by him that Coleman’s authority to sell the lot was acquired and the sale made by him to Dr. Cabell while the case was pending in the Court of appeals.

If the decree then was not conclusive upon its face as to the character of the previous possession, still less could it be so as to that of Mrs. Cabell’s possession after the decree under the assignment of dower. And if it even were so as to the former that could be no good reason why it should be so also as to the latter.

No aid is derived to the argument from the cross bill filed by Dr. Cabell or from the fact that the decree was in that case as well as in the original cause, both being heard together. The object of this bill was to assert the right which Dr. Cabell alleged he had acquired by purchase from Morris of his claim ■ against the estate of Charles Terrill and the decree as to it simply provided for the payment to the administrator of Dr. Cabell of the amount agreed to be due. But the heirs were not parties in this cross suit and there is nothing in it to estop them upon the question of adversary possession. The allegations of the bill, like those of the answer in the original suit, would of course be evidence against them, but they belong to the class of admissions not to that of judgments and decrees by which the fact is conclusively established.

x'Upon the question of adversary possession as presented by the second and third instructions, I think it should have been left to the jury to weigh the evidence and draw from it the proper conclusion. Undoubtedly the court might instruct the jury as to the nature and effect of the lis pendens as it might upon any other question of law involved in the enquiry, but to withdraw the case in this form from the jury by first passing upon a question of fact and then refusing the instructions because in its opinion the evidence failed to prove the case assumed would as it seems to me necessarily involve a confusion of the boundaries separating the province of the court from that which properly belongs to the jury.

What has been said disposes of the fourth, fifth and sixth instructions, also. The seventh was given by the court but the eighth appears to have passed sub silentio. The failure to give it has however not been assigned as error, nor do I perceive in what view it could be with success. But for the refusal of the court to give the second and third instructions, I am of opinion to reverse the judgment and remand the cause for a new trial.

DANIEE and SAMUEES, Js., concurred in the opinion of Eee, J.

AEEEN, P., and MONCURE, J.,

dissented. They thought that Cabell was a pendente lite purchaser, and that his possession of the lot was not adverse, but permissive.

Judgment reversed.