#### *McCue v. Ralston.

July Term, 1852,

Lewisburg.

Contracts — Specific Execution — Laches —Case at Bar.— A bill for specific execution of a contract between parceners for keeping open a lane through their lands, filed near twenty years after the contract, against a purchaser claiming under one of the parties, without actual notice, and even doubtful constructive notice, the lane having been closed for a number of years, and the plaintiff having stood by without setting up any claim to the lane when the land was twice sold, and having little or no interest in it, dismissed.

William Ralston the elder died about 1810 or 1811, leaving- a widow and eight children. By his will he gave to his wife, for her life, his land on Mossy creek in the county of Augusta; and he gave the same land at her death to William, David and Elizabeth Ralston, subject to certain legacies to his other children, with remainder over upon their dying without issue, to his other children. The widow died in 1823.

In 1819 the three devisees entered into a written agreement under seal fora division of the land, by which William Ralston took the land lying on the north side of Mossy creek, and 18% acres on the south side, lying along the creek. Elizabeth Ralston took the middle part of the tract adjoining the land of William on the south side of the creek, and bounded in part by the creek. David took the southern part of the tract, which was entirely cut off from the creek. It appears that there was a lane extending from a public road north of William Ralston’s house, across Mossy creek, dividing, on the south of the creek, the land of William and Elizabeth Ralston; and, in the agreement of partition, it is provided that "this lane shall be continued as it is*."*It was further provided that *Elizabeth should give to David a wagon road from a fixed point on the lane to another fixed point on the line between them. And each of them was to give one acre of their land to William Ralston where it might best suit them. This agreement was not recorded; nor did the parties execute deeds of partition.

David and Elizabeth Ralston being un*216married, lived on the land allotted to them, with their mother, and cultivated their shares jointly. William was put into possession of his part at once, and held it separately. In 1828 William Ralston sold and conveyed to David Ralston his laud on the south of the creek; and soon after that sale, two or three gates and a pair of drawbars were put up across the lane, and a part of one of the fences along it was taken away. William also put a gate across it on his side of the creek.

David and Elizabeth Ralston desiring to sell their land, and being unmarried and without issue, prevailed upon all but one of their brothers and sisters, including William Ralston, to release to said David and Elizabeth the contingent interest of the brothers and sisters in the land, under the limitation over in the will of their father; and in March 1829 they executed a deed releasing this interest to David and Elizabeth Ralston.

In April 1832, David and Elizabeth Ralston united in a sale and conveyance to Valentine Pence of all the land held by 'either of them on the south side of Mossy creek; and it was recited that they “do convey the same right mentioned in an article of agreement between William Ralston, David Ralston and Elizabeth Ralston, to the said Pence, of an open way through William Ralston’s lands (where the lane formerly went), to the public road leading from Miller’s iron works to the North river gap.” In May 1836, the executors of Pence, under a power in his will, sold and conveyed the land to James A. McCue; and in their deed they convey “the right of an open way through *the lands of William Ralston, where a lane formerly went, to the public road leading from Miller’s iron works to the North river gap, which said right of an open way as aforesaid was reserved in the division between the heirs of William Ralston deceased, hereinbefore referred to.”

In April 1839 William Ralston filed his bill in the Circuit court of Augusta county against James .A. McCue, David and Elizabeth Ralston and Pence’s executors, in which he set out the agreement of 1819. He charged that possession had been taken and held according to the agreement; that both Valentine Pence and McCue had had full knowledge of its existence; and that after McCue purchased the land, the lane had been closed. The prayer of the bill was, that the agreement might be specifically executed; that the two acres of land might be conveyed to him, and the lane reopened as it was in 1819.

McCue, in his answer, contended that the lane was not a public highway, but was merely intended for the convenience of the parties- to get their stock to water at Mossy creek, and an outlet for the parties to get to the public road which passed immediately by the house of the . plaintiff. That it was a lane in which David Ralston was principally interested, as his land was out off from the creek. Elizabeth had -less interest in it, as her lands were bounded on the north by the creek. That the plaintiff has some interest in it whilst he owned the 18% acres of land on the south of the creek, to pass from his land on one side of the creek to his land on the other side; but that after his sale of this land he had no interest in the lane. That David having purchased the land in 1828, and David and Elizabeth cultivating their lands jointly, they ceased to have any interest in the lane south of the creek, except for a passway to the road on the north, which passed near the plaintiff’s house and through ’’his land; and consequently immediately after that purchase by David, the lane on the south side of the creek was closed, and a gate substituted to pass to the north side and to the public road; and the plaintiff closed the lane on the north side of the creek, leaving a pair of bars to enable those on the south side and his own famity to get into the public road. He insisted further, that the plaintiff had sold his land to David Ralston without any reservation of his right to the lane, and had united in the deed releasing to David and Elizabeth his contingent interest in the land held by them; ánd had stood by and permitted the land to be sold to Pence, and by Pence’s executors to the defendant McCue, without giving them any notice of his claim to the lane or the two acres of land; and he averred that he had no notice of the claim, and he believed that Pence had none. And he alleged that before he purchased he applied to the plaintiff for the agreement of 1819, but plaintiff failed to produce it, alleging that it was lost or mislaid. And he relied upon the lapse of time and the acquiescence of the plaintiff as barring his claim.

Without detailing all the proceedings in the cause, it is sufficient to state that in the opinion of this court the evidence showed that the plaintiff, after the sale of his land on the south side of Mossy creek, had little or no interest in having the lane kept open. A number of witnesses living near to the plaintiff had never heard of the agreement for the lane; and although it had been obstructed by several gates and one pair of drawbars, and a part of the lane fence had been taken away soon after the purchase of the 18% acres by David Ralston, no objection or complaint had been made by the plaintiff until after McCue purchased the land. Of the plaintiff’s claim to the two acres of land, no person in the neighborhood seems to have had any knowledge of it until about the same period. It was ’’admitted, however, by McCue, that he had not paid the whole of the purchase money; and such also was the fact as to Pence.

The cause came on to be finally heard in July 1849, when the court decreed a specific performance of the contract as to the lane and the two acres of land, directing that McCue should remove the obstructions he had placed in the lane, and that the same should be opened to the full extent that it *217was at the time of the agreement of 1819, and was subsequently enjoyed under that agreement. And that the plaintiff should open that part of the lane running through his land *on the*north side of the creek. And a commissioner was directed to go upon the land and to lay down the lane according to directions given in the decree; and also to lay off the two acres of land as might best suit McCue; and to report his proceedings to the court in order to a final decree. And thereupon McCue applied to this court for an appeal, which was allowed.

Michie, for the appellant.

Fultz, for the appellee.

SAMUELS, J.

The contract between William Ralston, Elizabeth Ralston and David Ralston, of the date June 3d, 1819, is vague and indefinite in regard to the subjects involved in this suit. It seems from the plat of the land as divided by that contract, that the way provided thereby was intended for the benefit of Elizabeth Ralston in a small degree, and that it was highly important, if not indispensably necessary, to the enjoyment of David Ralston’s portion of the land. William Ralston however, could fully enjoy the land assigned him in the partition without this way, and his interest therein, if any, must have been very small. In regard to the acre of land which Elizabeth and David respectively were to convey to William, the selection ‘was left to Elizabeth and David; and as they might locate those acres detached from each other and in remote and inconvenient places, as McCue after-wards did, it is difficult to perceive what substantial interest of William Ralston could be promoted by a specific performance of the agreement in regard thereto. Thus the case stood between the parties to the original agreement. But the relations of those parties and the condition of the property itself have been since changed, and other parties have acquired an interest in the subject. William Ralston united in the deed of March 8th, 1829, conveying thereby all his interest in the two-thirds of the land held by them, of which the two acres in question formed a part. He made no reservation of those two acres nor of the way, but united in the deed for the purpose of enabling David and Elizabeth to sell and convey. He also sold and conveyed to David Ralston the 18 acres 3 roods and 28 poles of land lying south of the creek, to which part only of all his land the way could be of any *advantage.*He stood quietly looking on when the sale was made to Pence, giving no notice of the equitable claims now asserted. After all this, at the end of nearly twenty years from the date of the original contract, and at the end of nearly sixteen years after his reversionary estate had vested in possession, he filed his bill for specific execution of the contract in regard to the two acres of land and in regard to the way; and this too against McCue, a purchaser, having no actual notice, who had purchased of Pence’s executor, whose testator had also purchased without actual notice. Against each of these purchasers complainant makes out a doubtful case of constructive notice.

On consideration of the whole case, I am of opinion that complainant’s claim is too old and stale to be enforced by. a court of equity; that in the beginning he had too little interest in the subjects now in controversy *to call for the interposition of such court; that the change

in the relations of the parties owning the land, and in the condition and title of the land itself, make it improper to grant the relief prayed; that the deed of March 8th, 1829, passed any claim complainant may have had to the two acres of land; that the alleged right of way was at first of little or no value to complainant, and having parted with the land to which the way is said to have given value, and having allowed the way to be obstructed or closed for years, it must be held that this right of way, if not entirely lost, has become a mere personal right. The general principles governing courts of equity in regard to specific performance of contracts may be found in the cases. Anthony v. Leftwitch, 3 Rand. 238; Pigg v. Corder, 12 Leigh 69; Bryan v. Loftus’ adm’r, 1 Rob. R. 12.

I am of opinion to reverse the decree and dismiss the bill, giving the appellant a decree for the costs in both courts, but without prejudice to the right of the appellee to the way in the proceedings mentioned, if he have any such right which may be asserted in a court of common law jurisdiction.

The other judges concurred in the opinion of Samuels, J.

Decree reversed and bill dismissed.