1819. visees V. Zané. for each other rendered them careless on the subject, and OCTOBER, it was delayed from year to year, 'till his brother died without executing the deed: that his brother often declar- Zane's deed, before witnesses, that the upper part of the island was the plaintiff's, and, if he died before executing a deed, his children were directed to do so: that, so far from carrying into execution this intention of their father, the children, or some of them, are prosecuting an action at law to turn the plaintiff out of possession. All the children by name are made parties; and the prayer of the Bill is that they may be compelled to convey his part of the island to the plaintiff. The Bill was subsequently dismissed as to all the children, but Noah and Daniel.Noah filed his Answer; and, in this state, the papers were put into my hands before the last term. I returned them, saying I could not decide without the answer of Daniel, to whom, with Noah, it appeared from Noah's answer that the Island had been devised by Ebenezer. I mentioned at the same time, that I should like to see the Patent to Ebenezer, and his Will. At the last term it was agreed by Counsel, and entered of record, that the Answer of Noah should be taken as the answer of Daniel also; that all the depositions in the cause should be read as to Daniel, and that the cause should be considered as set for hearing. Accordingly, the papers were again put into my hands; but the Patent, or the Will of Ebenezer, have not been furnished. I do not know that they are absolutely necessary to a decision, as their existence and contents, so far as concerns this cause, seem to be admitted on all hands. The answer states, that the defendants Noah and Daniel are devisees, under their father's will, of the island; that they know nothing of the contract stated in the Bill, but have heard their father say that he had promised the plaintiff that he should during his life hold that part of the island, which lay opposite to his land on the main. The answer then refers to several copies of original entries and surveys; states that Ebenezer was invested with the legal title, and died seised; admits the plaintiff entitled to a life estate; alledges that, until their father's death, the whole island was taxed to 1819. OCTOBER, him, that the defendants are prosecuting at law a writ of Right to recover the part of the island in the plaintiff's Zane's de- possession, and hope to succeed, unless the plaintiff can visees v. Zane. shew the equitable claim he pretends to, and of which the defendants are ignorant: that the defendant Noah, upon hearing his uncle claimed the land, wrote to him, enquiring by what right he claimed, and stating that, if there existed any arrangement or agreement, by which his father was morally bound, he would execute it; to which he received no answer: that Ebenezer's certificate of settlement, covering the whole Island, would give him a title to the whole, unless the plaintiff could derive a title to part from some contract; and the defendants are perfectly and entirely willing to yield to the proof of such contract, if any such there be. This is an abstract of the answer. It will be observed, that it does not contradict the Bill, but, merely professing ignorance of the subject, puts the plaintiff on the proof of his case; to which proof, if any can be produced, they are entirely willing to yield. In support of his claim, the plaintiff produces, first, his long and uninterrupted possession, without the payment of rent, or any other evidence that he held it as the land of another: 2dly, the deposition of Mills, who says, that in 1775 he saw an improvement on that part of the Island claimed by the plaintiff, consisting of trees deadened and brush heaps made, which he understood were made by the plaintiff, who then lived where he now does, on the main, opposite the island:--3dly, the deposition of Mrs. Clarke, who says that, about the time of Broadhead's campaign, her husband moved on the island; that he applied to Ebenezer to lease him some land, who said he had leased all the land he had to spare; but referred him to the plaintiff; that the plaintiff gave her husband a lease of the upper part of the island, where she has ever since resided; that Ebenezer never mentioned to her his claim to that part of the island, or claimed rent, or ordered her off the premises; that her husband has been dead about twenty years; since which time, she has lived on the land, without paying any certain rent, but has cooked 1819. sees V. Zane. for the plaintiff's hands, and taken care of his stock and OCTOBER, farm, as a compensation for living on the land:-4thly, the deposition of John Caldwell, who says, that, in 1779, Zane's devihe was agent for his father James Caldwell, in land business, in the western parts of Virginia; that his father claimed land immediately below Wheeling Creek on the Eastern shore of the Ohio; Ebenezer directly above him; and the plaintiff next above Ebenezer; all of which lands lay opposite to different parts of Wheeling Island:that, after a time, a dispute arose between Ebenezer and the Deponent, in respect to their claims on the Island; which was amicably adjusted, by agreeing that each should retain so much of the Island as lay opposite to his land; that, some time in the Spring of 1782, the deponent was in company with Ebenezer, at the sitting of the board of Commissioners in Monongalia County, when Ebenezer proposed to the deponent to agree that he should include the whole Island in his certificate of settlement and take a patent for the same, and that he could make a deed to James Caldwell for his part: that, at the same time, Ebenezer mentioned to the deponent, that he had made such a proposal to Jonathan, who had agreed to it; and that each of the owners could pay an equal share of the expense, which would save costs: that the deponent would not make such agreement; and, sometime after, Ebenezer bought James Caldwell's part of the Island, which lay opposite his land below Wheeling Creek:-5thly, the plaintiff produces the deposition of the surveyor Woods, who says that, in 1784, he surveyed a tract of land on Wheeling Island, by virtue of a certificate from the land Commissioners, in the name of Ebenezer; that, while surveying the same, Ebenezer and Jonathan, (both present,) pointed out an Elm tree on the east side of the Island, and a Walnut on the West side, which they told the deponent to mark, for corner trees, to divide the said Island between them; which trees were marked for corner trees, and the deponent took an account of them in his field notes; the said Ebenezer saying that, as soon as a patent was obtained on the survey, he would convey that part above the said corners to Jonathan; that he has 1819. OCTOBER, the original field notes in his possession yet; (a Copy of which is filed among the papers, and admitted by the Zane's devi- Counsel;) and, upon examination, finds that the Elm sees V. Zane. on the East side of the Island is described as standing 182 poles from the upper end, and the Walnut on the West side as standing 174 poles from the upper end:the course across the upper end of the Island, is 17 poles at the Elm on the East side. The deponent recollects that Ebenezer said that his settlement right was enough to cover the whole Island, and that taking the whole up together would save Jonathan the costs of a warrant and separate survey. Lastly, the plaintiff produces the evidence of Moses Given, who says that he was with Ebenezer in his last illness, when he was on his death-bed; and, in a conversation he held with him, Ebenezer said that he intended the upper part of the Island for Jonathan. The deponent asked him why he did not see to it in his own day? he said, he had children he could rely on. The reason of the deponent's enquiry was, that he had previously understood, from common report, that the whole Island belonged to Ebenezer. Upon this evidence, the plaintiff rests to establish his claim; and I must confess, that, to my mind, it is extremely strong to prove that he had, by settlement or improvement, a right to the upper part of the Island; that, under this right, he was in possession; that Ebenezer and himself did make an agreement, (the proposition coming from Ebenezer,) that he (Ebenezer) should obtain from the Commissioners a settlement right, which would cover Jonathan's part of the Island, and should convey to Jonathan when he obtained the patent: that, in consequence of this agreement, Jonathan made no claim before the Land Commissioners:-that the conversation, which passed before the Surveyor Woods, was an explicit recognition of this agreement; and that the evidence of Given shews that, on his death bed, Ebenezer still acknowledged it. To countervail this evidence, what have the defendants produced? 1st, the declarations of Ebenezer and his wife that Jonathan was to have a life-estate only; or, at most, 1819. sees V. Zane. for himself and wife. These declarations I hold to be OCTOBER, utterly inadmissible in favour of the party making them. No man is permitted by his own evidence to make out his Zane's deviown case. 2d, The general understanding of the neighbourhood, that Jonathan had a life estate, and Ebenezer the fee simple. This sort of evidence upon the subject of title, is of little more worth than the last; probably produced by it, and by the farther circumstance of Ebenezer's having the patent, of which every one might know, though few would hear perhaps of the parol agreement. sd, The payment of taxes by Ebenezer; of taxes for the whole Island tract. This probably resulted, too, from the legal title being in him. The Commissioners for the County, finding that to be the fact, listed the land to him; and the tax on Jonathan's part, being but a trifle, excited no attention. This, at least, is probable:-but, whether true or not, the circumstance can by no means avail to prove, in the face of Jonathan's possession, that he had abandoned his claim. Thus, if the case depended merely upon the evidence for and against the agreement, I should feel little hesitation in the decision to be given: but, in the arguments which have been submitted by the Counsel for the defendants, several objections have been taken to the plaintiff's case, which I will proceed to consider. 1st, The Statute of frauds. 2d, That the agreement was without consideration. 3d, That the length of time which has elapsed should prevent the Court from interfering. 4th, That the case made out in the evidence is materially váriant from that stated in the Bill; and, however good in itself, will not justify a recovery, as the plaintiff must make out the case stated and put in issue. With respect to the Statute of Frauds, it is perhaps hardly worth while to say any thing; as one of the Counsel abandoned that ground, and the other I am sure would have done so, if he had adverted to dates; the Act having passed in 1785, and the contract here having been made long before that time. I will merely quote Judge ROANE'S remark in Vance v. Walker, on the subject. That, like this, was a contract for land. He says, "If it be said |