#### *Lange v. Jones.

April, 1834,

Richmond.

Chancery Jurisdiction — Settlement of Title and Bounds-of Land.* — A court of equity has no jurisdiction to-settle the title and hounds of lands between adverse claimants, unless the plaintiff has some equity against the party claiming adversely to-him.

Same — Same—Case at Bar. — Therefore, upon a hill in equity by vendee against vendor and a third person, for specific execution of contract for sale of land, alleging that part of the land sold is in possession of and claimed hy such third person, and praying that the rights of the vendor and the conflicting claimant may he ascertained, and if the vendor has no right to the part of the land held hy the conflicting claimant, that a proportionate abatement should he made from the purchase money contracted to he paid hy vendee; Held, the court of equity cannot properly entertain such a hill as to the conflicting claimant;

Chancery Practice — Failure to Set Cause for Hearing-Effect. — A cause is heard, and decided on the point *81of jurisdiction; it is no objection to the decree, that the cause liad not been set for hearing-.

Lange exhibited his bill against Jones and the executors of Adams, in the superior court of chancery of Staunton, setting forth, that by articles of agreement between Lange and Adams in his lifetime, Adams contracted to sell Lange a parcel of 800 acres of land in Augusta, which had been granted to Adams by patent dated the 27th November 1787, for 600 dollars, to be paid by Lange in three instalments of 200 dollars each, and to convey the title in fee simple to Lange, upon his paying the last instalment, and meantime to put him in quiet and peaceable possession: that Lange paid Adams the first two instalments: that Adams died without having made a conveyance, but by his will vested a general power in his executors, by which they were authorized to make the conveyance: that Lange had withheld payment of the last instalment, because he had discovered, that Adams’s title to the land or some part thereof, was doubtful and disputed: that, in particular, the defendant Jones claimed a part of it, under a purchase of adjoining lands from the heirs of one Hughart, and had actually taken possession of the same: that Lange was ignorant whether * Adams or Jones had the preferable right: and that it was the duty of Adams’s executors to adjust the controversy with Jones, and to convey the whole land to Lange, if Adams had good title; or_, if Jones had title to the part claimed by him, there ought to be an abatement from the purchase money contracted to be paid by Lange to Adams, proportioned to the deficiency. Therefore, the bill prayed, that Jones and Adams’s executors should shew their respective titles; that a survey should be made of the lands in question, and the boundary adjusted according to the rights of the parties; and that Adams’s executors should be compelled to convey the whole tract to Lange, if their testator had title to the whole; or if not, then to convey so much thereof as he had title to, and, in that case, to allow a proportionate abatement from the purchase money out of the last instalment.

Jones answered, that he claimed the land which he held, and which Lange alleged to be within the bounds of Adams’s grant, by purchase from the devisees of Hughart, the original grantee thereof; that the parcel lay within the bounds of the grant to Hughart, and that it belonged of right to Jones.

The executors of Adams did not answer, nor did it appear, that there were any proceedings against them.

Surveys were ordered by consent of Lange and Jones: and it appeared by the report of the surveyor, that about 75 acres embraced by the lines of Adams’s grants, were also embraced by the lines of the grants under which Jones claimed; so that this was a case of conflicting grants ; and the question upon the merits, was, which party had the elder and better right to the parcel of 75 acres.

It did not appear that the cause was set for hearing as to Jones. Yet, upon a hearing, the chancellor dismissed the bill as to Jones for want of jurisdiction; “it being understood between the parties,” that the right of the plaintiff as against the executors of Adams, should stand open for further proceedings and proof. From which decree Lange appealed to this court.

*Johnston, for the appellant,

endeavoured to distinguish this case from that of Stuart’s heirs v. Coalter, 4 Rand. 74. And if that case should be thought to rule this, he submitted that it went too far. Here, Lange came into the court of chancery, in order to have a preliminary point adjusted, on which depended the amount of purchase money he was bound to pay Adams’s executors, and also to have a specific execution of their testator’s contract of sale. He stood on the same ground as if Adams’s executors had recovered judgment at law against him for the last instalment, and he had then gone into the court of chancery, asking an injunction on account of the defect of title. And then the court would have had two courses, either to make the purchaser sue the vendor alone, for the defect of title, in which case no decision could be made that would affect the adversary claimant, and the title would still remain unsettled; or to permit the purchaser to convent the vendor and the adversary claimant before the court, and thus to have the w'hole controversy definitively adjusted. Or, if Lange, having suffered a recovery at law, had gone into equity for an injunction, until the adversary claimant should bring a suit for the land in controversy; that he might never do, and so the controversy might remain undetermined. Therefore, the only mode of obtaining relief, was that to which Lange had had recourse. But, at any rate, he said, the chancellor erred in hearing the cause without its having ever been set for hearing, and before the answer of Adams’s executors had come in; that answer might have disclosed very material facts.

*

Chancery Jurisdiction — Settlement of Title and Bounds of Land. — The proposition, that a court of equity has no jurisdiction to settle the title and hounds of lands between adverse claimants unless the plaintiff has some equity against the party claiming adversely to him, seems too well settled for controversy. As authority for the proposition, the principal case is cited with approval in Bush v. Martins, 7 Leigh 324; Steed v. Baker, 13 Gratt. 380, 385, 386 (in this case, the principal case is distinguished by Judge Moncuke, in his dissenting opinion, p. 388), and foot-note; Collins v. Sutton, 94 Va. 128, 26 S, E. Rep. 415; Sulphur Mines Co. v. Boswell, 94 Va. 485, 27 S. E. Rep. 24; Hill v. Proctor, 10 W. Va. 77; Johnson v. Jarrett, 14 W. Va. 236; Hudson v. Putney, 14 W. Va. 573; Watson v. Ferrell, 34 W. Va. 414, 12 S. E. Rep. 727; Davis v. Settle, 43 W. Va. 37, 38, 26 S. E. Rep. 564, 566 (dissenting opinion of Brannon, J.); Carberry v. West Virginia, etc., R. Co., 44 W. Va, 263, 28 S. E. Rep. 695. In accord, see Stuart v. Coalter, 4 Rand. 74; Carrington v. Otis, 4 Gratt. 235, *an&foot-note.*

*.*The principal case is cited in Boston Blower Co. v. Carman Lumber Co., 94 Va. 100, 26 S. E. Rep. 390, to-the point that objection for want of jurisdiction, may he taken for the first time in the appellate court, and may he enforced hy the court *sua spontv*though not raised by the pleadings, nor suggested hy counsel.

See generally, monographic *note*on “Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.

CARR, J.

The case of Stuart’s heirs v. Coalter was one very much considered, and, as I think, very correctly decided. lam entirely opposed to a departure from the principles there settled. The question is, whether the present case falls within the general rule, which inhibits courts of equity from deciding the dry legal title to lands? I think it does, clearly. It is a case of disputed boundary, — whether the title of Adams, or that of Jones, to the land in controversy, *was the best; and it appears upon the record, that Jones was in possession. What, then, was to hinder Lange from suing him at law upon the title of Adams? I see nothing, and am clearly for affirming the decree.

TUCKER, P.

It is distinctly alleged by the appellant in his bill, that the defendant Jones had actually taken possession of part of the land, claiming it as his own, and the fact is admitted and avowed by Jones. There could then have been no difficulty in having a trial of the legal title before the proper tribunal, by the institution of an ejectment in the name of Adams against Jones, until the decision of which Adam» might have been injoined by bill in equity. *82Instead of this, Lange brings Jones into chancery, without having any pretense of equity against him, and- acknowledging that the dispute in which Jones is interested, is a dispute about the title or bounds of his land. In this aspect, the bill is what has been aptly called an ejectment in equity, which is not to be countenanced by the court. In Stuart’s heirs v. Coalter, this court distinctly denied the jurisdiction of a court-of equity, to settle the title or boundaries of lands between adverse claimants, “unless the plaintiff has an equity against the defendant claiming adversely to him.” This principle bears hard indeed, where a purchaser in possession, but having strong reason to believe that another has a better title, wishes to settle the controversy before he pays his purchase money: on that matter, however, we give no opinion. But where, as in this case, the adverse claimant is in possession, there is nothing to impede the purchaser from proceeding at law to try title with him, in the meantime, injoining the recovery of the purchase money. Lange ought to have brought his ejectment in Adams’s name, and called upon him to sustain it; and should have asked an injunction to the payment of the purchase money, till it was determined. Therefore, I think the chancellor was right in dismissing the bill.

As to the cause not having been set for hearing, I am of opinion, that the omission was an informality of no importance *in this case, where the hearing was upon the question of jurisdiction, which depended upon facts set forth in the bill, and admitted and avowed in the answer. Substantial justice has been done: there has been a fair and full hearing upon the only point that could properly arise be1 tween the parties. A reversal, under such circumstances, is forbidden by the statute of 1827-8, Supp. to Rev. Code, ch. 96, $ 1, p. 125. Indeed, I think it is fairly to be inferred, that the cause came on to be heard by consent, from the understanding between the parties, that as to the plaintiff’s case against Adams, it should stand open ; that is, that so much of the case as respected Adams, should not be considered as heard, but should stand for further proceedings and proofs. Here, then, was an understanding between the parties, Lange and Jones (for Adams’s executors were not before the court), as to the manner in which the cause should be heard. The objection that the cause was not set for hearing, is, therefore, not sustainable.

The other judges concurred. Decree affirmed.