#### *Warwick & Wife and Another v. Norvell.*

November, 1842,

Richmond.

(Absent Cabgeo and Stanakd,† J.)

Injunctions to Actions at Law—Legal Defences—Confession of Judgment.‡—A defendant at law, having a legal defence to the action, and a distinct ground for equitable relief against the plaintiff’s claim, may bring his suit in equity without waiting for the determination of the action at law, and may, without being compelled to waive his legal defence by confessing a judgment, have a hearing in the court of chancery on the merits of this case, and a decree for the proper relief.

Patent—Waste Lands—Patent Void.§—Land which had been patented in 1755, being adjudged in 1774, *261upon petition to tile general court, to lie forfeited an d revested in the croivn. was, in 1797, granted anew by patent to the holder of a land office treasury warrant, as waste and unappropriated land. Hi:f.n by the court of appeals (following the decision in Whittington &c. v. Christian &c., 3 Rand. 353,) that the patent of 1797 was void.

Caveat—Waste Lands—Construction oi Statute.—The statute of May 1779. ch. 13. giving the remedy by caveat for determining the right to waste and unappropriated lands, did not extend to lands which, having been once granted by patent, had afterwards lapsed and become forfeited to the state.

Patent—Repeal of—Statute.- -Case in which a patent for land was repealed in chancery, under the statute 1 Eev. Code, ch. 119, so far as it interfered with the rights of the complainant.

In September 1812, Reuben Norvell brought a writ of right, in the superior court of law for Amherst county, against John Camm and Betsey his wife and John Warwick and Mary his wife, for a tract of 433 acres of land lying in Amherst. By the evidence at the trial it appeared, that the land in controversy was parcel of a tract of 3926 acres, which had been granted, in September 1755, to James Christian, John Christian and William Brown. That after the death of the grantees James and John -Christian, (whereby the whole land survived to Brown) Charles and John Christian, sons of the grantee *'John, presented a petition to the governor for the whole tract, as lapsed and forfeited for nonpayment of quit-rents. That the general court, in April 1774, gave judgment for the petitioners that the lands were forfeited and revested in the crown, and ordered it to be certified to the governor. That in October 1777, the petitioners Charles and John Christian conveyed and delivered possession of 933 acres of the land to James Grissom. That Grissom conveyed 433 acres, parcel of the 933 acres, to Thomas Powell, by deed dated the 27th of August 1787, and -delivered him the possession accordingly. That Powell died in 1788, intestate; and mrs. Camm and mrs. Warwick were his -daughters and only heirs at law. That Camm and wife and Warwick and wife, and those under whom they claimed, had been in possession, ever since the year 1774, «of the land in controversy, which was the same parcel of 433 acres conveyed as aforesaid by Grissom to Powell. And that Norvell, the demandant, now claimed it under a patent issued to him, bearing date the 23d of November 1797, and founded on a land office treasury warrant. Whereupon the court gave an instruction to the jury, that, as the land had been once granted by patent in 1755, though it had been adjudged forfeited and lapsed, by the general court in 1774, and though no new patent had been granted to the petitioners at whose suit it was so forfeited, yet it was not waste and unappropriated land, subject to be taken up by a treasury warrant, and therefore the patent granted to Norvell in November 1797 was void. The jury, under this instruction, found a verdict for the tenants, and the court gave them judgment. On appeal therefrom by Norvell, a special court of appeals, in December 1818, held that Norvell’s patent, being on its face fair and regular, could not be thus impugned collaterally and by extrinsic evidence, but only by suit in equity to set it aside, or some other proceeding having that for its direct object; and that *patent must prevail, except against an elder one: therefore the judgment was reversed, and a new trial directed. See the report of the case, 6 Munf. 233.

In May 1819, V arwick and wife and mrs. Camm (whose husband was now dead) preferred their petition to the superior court of chancery of Lynchburg, setting forth the rights under which they claimed and held the land in controversy; charging that Norvell’s patent of November 1797, embracing the same, was obtained fraudulently, surreptitiously, illegally, and to the prejudice of the right of the petitioners, being granted upon the false suggestion that the land was waste and unappropriated, and while the female petitioners, who were then infants, were in the actual possession thereof, claiming title thereto in their own right: and therefore praying a writ of certiorari to the register of the land office, commanding him to certify the said patent in-to the court of chancery, in order that the same might be inspected and repealed. The certiorari was awarded, and a copy of Norvell’s patent duly certified by the register. It was for 669jt¡ acres of land, embracing the 433 acres claimed by the writ of right.

In February 1824, the case of Whittington v. Christian (reported in 2 Rand. 353,) was decided by the regular court of appeals. It was ejectment brought by the heirs of John Christian against Whittington, for 1000 acres of the 3926 acres of land granted by the patent of September 1755 to James Christian, John Christian, and William Brown. The plaintiffs claimed under John Christian, the son of John the original patentee, and one. of the petitioners at whose suit the general court, in 1774, had declared the patent of 1755 forfeited. Whittington claimed under Norvell, who claimed this tract of 1000 acres under three patents dated in 1797, and who, and those claiming under him, had held the land ever since. In this case the same questions arose, which were presented in the case of Norvell v. Camm &c., 6 *Munf. 233, and which were then decided in favour of Norvell; namely, Whether the land in question, having been granted in 1755, and having been afterwards, in 1774, adjudged to be forfeited and revested in the crown, was waste and unappropriated land, subject to location on a treasury warrant? if not, *262Whether, nevertheless, the commonwealth’s legal title therein passed to Norvell by virtue of the patents granted to him in 1797? And the court, upon full consideration, decided both points in the negative: it held, moreover, that the petitioners, at whose suit, in 1774, the lands were adjudged forfeited by the original patentees of 1755, and the heirs or assignees of those petitioners, were even now entitled, by right of preemption, to claim grants for the lands so forfeited, and that such grants, when issued, would relate back to the date of the original patent of 1755.

In May 1824, Warwick and wife and mrs. Camm filed tlieir bill against Norvell, in the superior court of chancery of Bynchburg. After setting forth, in minute detail, the history and particulars of the title which the complainants claimed in the 433 acres of land (and which had been briefly stated in the petition), the bill charged that Norvell, though he well knew of the various acts under which the female complainants derived their title, proceeded to procure his patent of the' 23d November 1797, while those complainants were yet infants of tender years, and while they were in full possession of the said tract of 433 acres; that the said grant to Norvell was illegally, fraudulently and surreptitiously obtained, by a false suggestion that the land embraced thereby was waste and unappropriated, and a fraudulent concealment of the facts known to him as aforesaid; and that it was obtained to the prejudice of the rights of these complainants. The bill then set forth the proceedings had in the writ of right, the decision of the special court of appeals therein, and the conflicting *decision of the regular court of appeals in the case of Whittington v. Christian: after which it proceeded in the following terms—“These complainants, in the trial of the aforesaid writ of right, are placed by the varying judgments of the courts in this awkward dilemma—While i't is solemnly decided, as the law of the land, that the said Norvell’s patents are void both at law and in equity, it has been adjudged, as the law of this particular case, that the validity of said patents cannot be enquired into in a court of law. There are other grounds upon which these complainants are advised that they may still hope to recover, even at law, in the defence of the said writ of right: but they are also advised that it is unsafe for them to go into the trial thereof, precluded as they may be from insisting that the said patents of the demandant are void.” Wherefore the bill prayed that the patent of the 23d November 1797 might be examined and repealed by the chancellor; that meanwhile Norvell might be injoined from farther proceedings on his writ of right, until the subject could be examined and determined in equity ; and that the court might order a new trial of the mise joined in the writ of right, wherein Norvell should be inhibited from using that patent in support of his claim.

The injunction was awarded.

” Norvell answered, denying that his patent had been obtained fraudulently, surreptitiously, illegally, and upon false suggestion. He relied upon the opinion and' judgment of the special court of appeals in his favour, in bar of all the claims advanced by the bill of the plaintiffs for relief; and he controverted the opinion expressed by the court of appeals in Whittington v. Christian, that the lands originally patented in 1755, and subsequently revested in the commonwealth, were not liable to be taken up under treasury warrants. “But” (the answer proceeded) “whatever may be the fate of the question upon a review of the decision of the court of ^appeals, this respondent is advised that the law of this case, as between him and the plaintiffs, was by the judgment of the sx)ecial court of appeals, definitely and irreversibly fixed, and by the law so fixed he has a clear and incontestable right to recover at law. This being the case, this respondent is further advised that no precedent deserving the respect of the court sanctions the intervention of the court of equity in the way in which it is sought in this case, as so far granted, by stopping the proceedings at law, so as to keep the suit at law pending and undetermined. Such an intervention, if made on the idea that a defence may be still made at law, is violative of the most obvious principles of a court of equity, and if on the concession that there is no defence at law, it is equally reprobated by those principles, because it keeps on foot two undetermined suits, and should the plaintiffs succeed in equity, this respondent will have been exposed to expenses of the suit that is kept pending at law, without any possible advantage to any one, and should they fail, they will have had for a long time unmerited protection from a court of equity, while that court has left them, when that protection shall have been withdrawn, free to use at law every technical and quibbling objection that may possibly exist against the forms of the proceedings at law. This -respondent insists that this case ought not to be taken out of the general rule; and by that rule no injunction should be awarded, but on the condition that the plaintiffs submit to judgment at law, and release all errors in such judgment.”

On the 12th of October 1825, the court of chancery made an order that the injunction which had been awarded to the plaintiffs should stand dissolved as an act of that day, unless the plaintiffs should, at the next term of the superior court of law, confess judgment in the writ of right, for the 433 acres of land in the bill mentioned as claimed by them, or so much thereof as *might be comprised in the defendant’s grant sought by the bill to be repealed. On appeal by Warwick and wife and mrs. Camm from this decree, the court of appeals affirmed the same; saying, that the general rule was, that when a party came into equity, to be relieved against proceedings at law, he must confess judgment at law, and rely solely on *263the court of equity for relief: that there was nothing in the peculiar circumstances of this case to take it out of the rule: that, indeed, it did not appear that there was any cause for an injunction, except to restrain the defendant in equity, after judgment obtained by him at law, from turning the tenants out of possession, before the validity of the patent on which his legal title depended, should be examined and decided on in the court of chancery. See the case reported in 1 Leigh 96, where will be found a history, in some respects more detailed than the preceding, of the controversy between these parties.

After the case got back to the court of chancery, the only additional papers filed were copies of some proceedings in the writ of right, which shewed that it was still pending and undetermined in September 1829. At May term 1830, the cause was continued at the instance of the defendant, though the plaintiffs pressed for a hearing and offered to take a decree vacating the defendant’s patent upon condition the plaintiffs should confess judgment in the writ of right. And at the October term 1830, the plaintiffs again offered to take a decree upon the same condition. But the cause being finally heard at that term, the chancellor dismissed the bill, upon the ground that after the decision of the court of appeals affirming the decree which conditionally dissolved the injunction, it was necessary for the plaintiffs either to comply with the condition of confessing a judgment at law, or to abandon their suit in chancery, and that in failing to confess the judgment they had shewn their preference for relying upon their defence at law. x'From the decree of dismission, Warwick and wife and mrs. Cauim again apppealed to this court.

Johnson, for appellants.

The injunction was a mere appendage to the bill of the appellants, and this court, on the former appeal, held that it was even an unnecessary appendage. Yet the chancellor decided that as the injunction had been properly dissolved in consequence of the failure of the complainants to confess judgment in the action at law, the case ought not to be heard on the merits without such confession. This was obviously wrong, and this court will now decide the merits. The case arises under the statute 1 Rev. Code, ch. 119, p. 466, which declares and regulates the practice of suing out and prosecuting writs of scire facias to repeal letters patent. It may be said that the complainants should have waited until the writ of right was disposed of, and then brought their suit to repeal Norvell’s patent. It may also be said that judgment in the writ of right may have rendered the decision of this case unnecessary. The first objection is sustained by no authority: and as to the last, this court can know nothing of any decision that may have taken place in the action at law. Besides, even if a judgment had been rendered in favour of the appellants, it would still be material for them to have Norvell’s patent vacated.

Stanard, for appellee.

It is unnecessary to go into any examination of the merits, because the appellants have not placed themselves in a condition to entitle them to ask judgment on the merits. They have refused so to do, and elected instead to rely on their legal rights. The bill was filed in opposition to the plain elementary principle, that a party shall not, at the same time, litigate the same matter at law and in equity. The plaintiffs, if they relied on the equitable circumstances, should have relied solely on them, and submitted themselves entirely- to the court of equity for relief. See 'x'Rogers v. Vosburgh, 4 Johns. C. R. 84; Branch v. Burnley &c., 1 Call 153, and the argument for the appellee on the former appeal between these parties, 1 Iveigh 106. But the principle as contended for by the appellants’ counsel is only applicable where no real defence exists at law; that is, where its application would avail nothing. In his answer, the appellee objects to the course taken by the appellants, that injury might thereby be inflicted on him, for which there would be no compensation. The soundness of the objection is well illustrated by the fact (not appearing, it is true, in this record) that the appellants have obtained judgment in the action at law, from which no appeal was taken in time, and yet are subjecting the appellee to the expense of this suit in equity, brought for the ostensible purpose of enabling them to do that which the result shews they could have effected without coming into equity. [Allen, J. There may be a case in which a party having a defence at law, may no.t be willing to defer his resort to equity until after the judgment, lest he should be barred by the limitation.] In no case where a bill is filed for substantive relief in equity, and the matter is the subject of a suit at law, will the court of equity permit the party to be proceeding at the same time in both forums. The cases in which equity permits the simultaneous proceeding in both forums in respect to the same matter, are those in which its own jurisdiction is ancillary to the jurisdiction at law.

The statute 1 Rev. Code, ch. 66, § 60, p. 208, directs that on the dissolution of an injunction, the bill of the complainant shall stand dismissed, unless sufficient cause be shewn against its dismission. And where the complainant is proceeding at the same time in both forums, no such cause can be shewn.

Upon the merits, if it be necessary to go into the consideration of them, the plaintiffs are not entitled to relief. For, if Whittington v. Christian is to govern this *case, there was no necessity for coming into equity. If on the other hand the decision of the special court is to prevail, it amounts to this, that the appellee must succeed at law by force of his patent; and then, on the authority of Noland v. Cromwell, 4 Munf. 155, the appellants can*264not be admitted to sue in equity, unless they shew that they were prevented by fraud, surprise or accident, from resorting to the remedy by caveat. The doctrine on this subject was afterwards examined in M’Clung v. Hughes, 5 Rand. 453, and Jackson v. M’Gavock, 5 Rand. 509. If Noland v. Cromwell settles the law as of that time, it settles the law of this case. If the statute of 1819, 1 Rev. Code, ch. 85, $ 38, p. 330, be relied on, Jackson v. M’Gavock settles that that statute is prospective. But even under M’Clung v. Hughes, the appellants here are entitled to no relief; for the appellee has been guilty of no actual fraud.

Under the proviso in the statute 1 Rev. Code, ch. 119, *l*1, p. 457, the remedy given by that statute lies only for a party having an equitable title to lands. Whatever title the appellants have to the land in controversy, is decided by the cases of Whittington v. Christian to be purely legal.

Johnson in reply.

The doctrine as to election, where two suits for the same thing are brought by the same plaintiff, is not controverted. But here the party is the pursued in one forum, and the pursuer in the other. The decision in 1 Leigh 96, itself denies the applicability of that doctrine to this case: for it supposes that there is jurisdiction, and that relief in equity may be given. And after a cause has been brought before this court, and the court has directed certain proceedings therein, the jurisdiction is no longer to be questioned.

Suppose the bill here had not been filed until after judgment; would it have been any objection that the defence was not made at law? The whole objection of the appellee is merely that the bill was filed too soon—*that if the appellants had suffered the case at law to proceed to judgment, they might have succeeded in the court of law, in which event they would have had no occasion to come into equity.

The doctrine as to caveats has no application in this case. That doctrine is settled with reference to patents which have been acquired according to law; which the officers of the commonwealth were authorized to issue, and which do give the legal title. It has no reference to patents which the commonwealth’s officers had no authority to issue, and which do not convey any legal title.

It is objected that the proceeding in equity was not authorized, if the title of. the appellants was legal. Is not a good legal title a good equitable right under the statute giving the scire facias to repeal patents? If not, what means the doctrine that a patentee may caveat? But it is not ascertained, even by Whittington v. Christian, that the title of the appellants is not purely equitable.

Whittington v. Christian now authorizes us to say that Norvell’s patent is void—that he had no legal title to the land in controversy. There was then a good defence to Norvell’s action. But the special court of appeals mistook the law (as we are now authorized to say) and held that the defence was to be shewn in equity. In this state of things the appellants go into equity, and the court of chancery says it will not grant relief, not because Norvell’s patent is valid, but because the appellants have elected to make their defence at law. The whole question is merely this: whether, where a party has a good defence at law, and he is prevented from making it, not by his own fault but by a mistake of the courts, he may make it in equity?

*

 For monographic note on Caveat, see end of case.

†

He had formerly been counsel for the appellee.

‡

Injunctions to Actions at Law—Legal Defences—Confession of Judgment,—For the statement in the first head-note the principal case is cited and approved in Robinson v. Braiden, 44 W. Va. 195, 28 S. E. Rep. 802; Knott v. Seamands, 25 W. Va. 105; Miller v. Miller, 25 W. Va. 510; Penn v. Ingles, 82 Va. 69; Dudley v. Miner, 93 Va. 410, 25 S. E. Rep. 100; Great Falls Man. Co. v. Henry, 25 Gratt. 580.

See *foot-note*to Thornton v. Thornton, 31 Gratt. 12, and monographic *note*on “Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.

Same—Same-Same—Discretion as to Requiring Con» fession of Judgment.—In Great Palls Man. Co. y. Henry, 25 Gratt. 579, it is said: “That onr own courts have the discretion above accorded to them in relation to requiring a confession of judgment at law, and that they will not require it at all, if on the case made in equity it appear that it will be unsafe for the defendant at law to make such confession, is fully recognized by this court in *Warwick v.*Norvell, 1 *Rob.*308.”

§Patents—Impeachment at Law—Causes Not Apparent on Pace.—In Blankenpickler y. Anderson, 16 Gratt. 62, it is said: “There has been much conflict of opinion, and no little contrariety of decision upon the question how far a patent may be impeached, in an action at law, for causes not apparent on its face. The better opinion seems to be that while its validity cannot be questioned in a suit at law, but is impeachable in equity only, for causes anterior to its being issued which render it voidable merely, it may be impeached at law, for any matter which. *261makes it absolutely void; as where the sta te has no title to the thing granted, or where the officer had no authority to issue the. grant. Polk's Lessee v. Wendal, 9 Cranch 87; S. C. 5 Wheat. 293; Patterson v. Winn. 11 Wheat. 380; Whittington v. Christian, 3 Rand. 353; *Warwick v. Worrell;*1 *Rob.*308.”

ALLEN, J.

The effect of the interlocutory order, affirmed by this court when this case was formerly before *it, was merely to dissolve the injunction which had been allowed the plaintiffs, unless they should confess judgment at law for the land in controversy. The chancellor has given to the order a much broader in ■ terpretation. Though the case was ready for hearing, and a decision on the merits asked for, he has proceeded, not to dissolve the injunction according to the terms of the former order, but to dismiss the bill. In this course it seems to me he erred. The injunction was a mere incident to the main controversy. In the opinion of this court there was no cause for it when allowed. But though the plaintiffs lost the benefit of the injunction, they were still entitled to a decision upon the merits, if the case was in other respects proper for a court of chancery.

The jurisdiction of the court is objected to, because the plaintiffs relied, in their defence to the writ of right, upon the same matters set up in the bill as grounds for equitable relief. It is said that by refusing to confess judgment they have elected to abide by their legal defence, and they should not be permitted to litigate the same matter, at the same time, both at law and in equity. The plaintiffs, it is true, did attempt to avail themselves of these same matters in defence of the action at law. The special court of appeals decided, that they constitued no legal defence; that however it might be in equity, at law the defendant could not go behind a patent, regular on its face, and avoid it by extrinsic evidence. The ground of the objection to the jurisdiction therefore fails. The plaintiffs are not relying upon the same matters, as a defence to the action at-law, and for relief in equity. Eor at law, and as respects this particular case, the matters charged in the bill constitute no defence whatever. What was the defence which the appellants expected to make at law, does not appear; nor is it material. It is sufficient to sustain the jurisdiction of the court of equity, if it be shewn, that, *by the course of decisions settling the law of this case, the matters relied on in the bill could avail the appellants in equity only.

No authority has been produced which establishes that a party having a defence at law to an action brought against him, and a distinct ground for equitable relief *265should his defence prove unavailing, must abandon his legal defence by confessing judgment, or await the decision of the action at law before he can be entertained in equity. Where there is a concurrent jurisdiction of the same matter, and the plaintiff may sue in either forum, there is good reason to compel him to elect between them. Redress can be obtained in either, and the plaintiff should not be permitted to harass his adversary by pursuing him in both tribunals. The defendant has no such election; he is brought into court against his consent: and I perceive no good reason why he should be prohibited from setting up his distinct ground for equitable relief, during the pendency of the action at law. The holder of the legal title has frequently obtained it under circumstances which would constitute him a trustee for the party having a superior equity.

A question however may arise, whether the elder grant embraces the subject in controversy? This is proper to be determined by the legal tribunal. It is to the interest oí the defendant at law, that it should be ascertained. Until it is determined, it does not appear that the plaintiff at law has a title which interferes with the right of the defendant. In such cases the defendant cannot safely confess a judgment at law. And if in the meantime he should be precluded from proceeding in chancery, his equitable right might be lost, from the lapse of time or the loss of testimony.

It is further objected that the caveat was the proper remedy, and that no sufficient excuse is offered for failing to resort to it. The remedy by caveat was provided to settle the numerous controversies likely to arise between ^competitors for land under the act of 1779. That law provided a mode for the disposition of waste and unappropriated lands, and for the settlement of all existing claims to unpatented lands. But lands which had been once patented, and had lapsed, were not embraced by its provisions. They were left, according to the decision in Whittington v. Christian, 2 Rand. 3S3, “as they were under the former laws.” Those laws regulated the mode of proceeding in regard to lands in this condition. The first petitioner acquired a right to sue out a patent upon the performance of certain conditions. He could be deprived of this right but in one way,—by the judgment of the proper tribunal at the suit of a subsequent petitioner. Without such judgment, no grant could issue. And if a grant did improperly issue, the first petitioner could at any time sue out his patent, which related back to the first grant, and so overreached any intermediate patent. The petition and judgment thereupon would seem to have been the mode of determining controversies under the laws then in force. There was no need of the caveat. Until judgment of forfeiture, the right of the first petitioner was completed as against all others, and a subsequent grant would have been merely void. After judgment of forfeiture, his interest was at an end. I think, therefore, that there is nothing in this objection.

Upon the merits, the previous action of this court has left us but little to determine.

The case of Whittington v. Christian decided that these lands could not be appropriated by a land office treasury warrant, as waste and unappropriated; that having once been granted, no title could be acquired by entry and survey; that they were reserved to be granted in a specified mode, and a patent obtained in any other mode was void. The special court of appeals, in 6 Munf. 233, had decided in reference to the patent in this case, that as it was regular on its face, extrinsic ^evidence was not admissible to impeach it in a court of law. The law of the land, as determined in one case, renders all such patents void; the law of the case, as decided by the special court of appeals, excludes all evidence of facts, upon the trial at law, which go to impeach the validity of the grant. In this state of the law and the adjudications, the plaintiffs have resorted to the only remedy left, a scire facias to repeal the patent. The law regulating this proceeding authorizes it to be sued out to repeal a patent obtained from the commonwealth by false suggestions, or issued contrary to law, or to the prejudice of private right. In this case the patent was obtained by the false suggestion that the land was waste and unappropriated, and liable to entry and survey under a treasury warrant. It issued against law, as lands once granted and lapsed could only be granted in the mode specified, after judgment of forfeiture. And it issued to the prejudice of the better right of the plaintiffs; for, until forfeiture, they were Entitled to a grant upon performing the conditions required. I think therefore that the court, instead of dismissing the bill, should have rendered a decree repealing so much of the patent to the defendants, dated the 23d day of November 1797, for 669K acres of land, as interferes with and is included within the boundaries of the tract of 433 acres, conveyed by James Grissom to Thomas Powell the ancestor of the plaintiffs, by deed bearing date the 21st day of August 1787.

The other judges concurring, decree reversed with costs. “And this court proceeding to pronounce such decree as the said chancery court ought to have pronounced, it is further decreed and ordered, that so much of the patent to the appellee, dated the 23d day of November 1797, for 669j¿ acres of land, as interferes with and is included within the boundaries of the tract of 433 acres, conveyed by James Grissom to Thomas Powell *the ancestor of the appellants, by deed bearing date the 21st day of August 1787, be and the same is hereby repealed, and that the appellee do pay unto the appellants their costs by them about their suit in the chancery court expended. And it is further ordered that this decree be certified to the register of the land office.”