Adams County MsArchives Court.....Iler, Mark 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Iler, Appellant, v. Routh’s Heirs.

pages 276-300

It is well settled, that a bill of review can only be granted after an 
enrolment of the decree for error, apparent on the face of the decree; or upon 
some new matter, proved to have been since discovered. The new matter must not 
only be relevant, but distinct, and such as could not, upon reasonable 
diligence, have been previously discovered.

A bill of review will not be sustained merely to accumulate testimony to prove 
a fact which has before been in issue.

After an issue directed, as to the question of heirship, and verdict had, a 
party will not be allowed a bill of review to obtain witnesses to add to and 
strengthen his former proof.

But unless such bill be objected to below, it will be too late to raise the 
objection after an appeal.

The chancellor may, whenever his mind is in doubt or uncertainty as to the 
preponderance of evidence, send an issue to the country; but he has a right, 
with certain exceptions, to take upon himself the decision of every fact in 
the cause. And where the chancellor directed an issue to the country, in a 
case where the preponderance of evidence was clearly on one side, it was 
determined error would not lie, inasmuch as it was entirely a matter of 
discretion with the chancellor.

One heir may disseise his coheirs, and hold an adverse possesion against them 
as well as a stranger; and, notwithstanding an entry as heir, the party may 
afterwards, by disseisin of us coheirs, acquire an exclusive possession, on 
which the statute of limitations will run.

Fraud, when relied on as an answer to the statute of limitations, cannot be 
presumed, but must be clearly proved.

Where A, pretending to be the legal representative of B, sold the land of 
ancestor, in violation of the rights of the heir, and twenty years elapsed 
after the heir became of age, before he commenced his suit in equity for the 
recovery of the land, and the possession of the purchasers was accompanied 
with a multiplicity of acts demonstrative of a claim of ownership: Held, the 
right of the heir was clearly barred by the statute of limitations.

APPEAL from the Superior Court of Chancery.

The appellant filed his bill in the court below, to recover a tract of land in 
the county of Adams, as the heir of one Mark Iler, deceased.

The appellant claimed the tract of land mentioned in his bill as the sole 
surviving heir of the said Mark Iler, deceased. The bill states that the said 
Mark Iler, who is represented to be the ancestor of complainant, died in the 
year 1798. That he obtained the possession of the land in controversy, under a 
title derived from the Spanish government, and continued so possessed as the 
undisputed owner, until his death. The bill then charges that afterwards, and 
whilst the complainant was a minor, one Jonas Iler, since deceased, pretending 
to be the legal representative of said Mark Iler, sold the land to Job and 
Jeremiah Routh.

After the death of Mark Iler, a patent issued from the Spanish government, in 
the name of George Rowe, who was the first purchaser from that government, and 
under whom the said Mark Iler derived his title. That the Rouths obtained 
possession of this patent, and presented the same to the board of 
commissioners west of Pearl river, and obtained a confirmation of the Spanish 
title. The bill avers that, during this time the appellant was a minor and 
absent in Virginia; and that, within twenty years, he was ignorant of his 
rights; and that the appellees studiously avoided giving him any information; 
and that, as they had the possession of the title papers, complainant never 
would have become acquainted with his rights, but for mere accident. The 
appellant states that he knew of no other heir of the said Mark Iler.

The answer of Job Routh admits all the material facts of the bill except the 
statement that the complainant is the heir of Mark Iler. He also expressly 
denies that the evidences of title from the Spanish government were procured 
by fraud. He does not know at what time the complainant came to the knowledge 
of his rights, but believes that, at the time of the institution of the suit, 
he was more than forty years of age. The answer further states, that he has 
been in possession, without interruption, of said land, claiming it as his own 
against all the world since 1793, and relies in his defence on the statute of 
limitations. There were various depositions taken and read upon the trial, all 
of which were directed to the question of the heirship of the appellant. On 
the second Monday of January, 1829, by an interlocutory decree of the court of 
chancery, an issue of fact was directed to be made up, whether complainant was 
the son and heir of Mark Iler; and on the 16th day January, 1829, a verdict 
was returned, by which the issue was found against the appellant. A bill of 
review was afterwards filed, and additional testimony taken to prove the 
heirship of the appellant. At the April term of the court below, for the year 
1832, a final decree was rendered, dismissing the bill generally, from which 
this appeal was taken.

Several witnesses testified to the marriage of Mark Iler with Mrs. Hootsell, 
who was admitted to be the mother of the appellant. The ceremony was performed 
at the military post of Arkansas, by a person who testified that he was 
authorised by the authorities at that place to solemnise marriage.

It was also proved by one Crooks, that the marriage contract was acknowledged 
by both parties. Katharine Kimball confirmed the statement of Crooks, related 
when, and at what house, the marriage took place, and declared it was 
solemnised according to law.

The birth of the appellant was also proved, and that Mark Iler recognised him 
as his son.

It appeared that Mrs. Hootsell separated from Mark Iler, about seven months 
after the birth of her son; that she subsequently lived with one Fixton; and 
that the appellant, who lived with his mother, was called Abraham Fixton.

Smith, for the appellant.

1. We insist that the legitimacy of Abram Iler, the complainant, is clearly 
established by the evidence taken in the cause. The testimony of Margaret 
Kimball alone, would be sufficient for this purpose. It is direct and positive 
as to the fact of marriage; the subsequent cohabitation of Mark Iler with the 
mother of the complainant; the birth of the comp1ainant within one year after 
the marriage; and the acknowledgment of Mark Iler after the birth of the 
complainant, that "he was his lawful child."

This testimony stands wholly unimpeached by the testimony of any witness. No 
fact is noticed by any of the witnesses, directly repugnant to or 
irreconcilable with the perfect correctness of M. Kimball’s statement. No fact 
is affirmatively and directly proved, which may not be true; and yet the 
testimony of M. Kimball be entirely so. The testimony of Christopher Miller 
and Susanna Smith, establishes facts which tend to show that a marriage did 
not take place; but even if they had directly and positively asserted that no 
marriage had been consummated, the credit which is to be given to the direct 
and affirmative testimony of Margaret Kimball, were there no evidence 
corroborative of her statements, would outweigh the opposing testimony. 
Swift’s Ev. p. 145—6. The testimony of M. Kimball is powerfully sustained by 
the other proofs; by the evidence of J. Bradly and Margaret Williams. The 
evidence of these latter witnesses is sufficient to establish the legitimacy 
of the complainant. Courts, in cases similar to the one under discussion, will 
admit the declarations of deceased persons, who, from their situation, are 
likely to be cognisant of the facts. The statement of Margaret Bolton, 
afterwards Milurn, is, therefore, competent testimony. Buller, N. P. 294; 
Swift’s Ev. The statement of the complainant’s mother, made to Bradly, that 
the complainant was her legitimate son, by her marriage with Mark Iler, is 
evidence of both facts. The principle upon which statements of this character 
are admitted as evidence, is too well understood to require elucidation. As to 
the principle, authorities will be found in point in 1 East, 345; 7 East. 270. 
As to the question of the admissibility of the statement of the complainant's 
mother, touching her marriage and the legitimacy of his birth, as evidence in 
this cause; the opinion of Lord Mansfield in Cowper’s Rep. 591, is conclusive.

We assume, then, that the heirship of the complainant is established; he is 
entitled to the property of his deceased ancestor, therefore, unless there has 
been a legal divestiture of his rights, or unless the facts, as established by 
the proofs in the cause, enable the respondent to interpose successfully the 
statute of limitations.

It will be necessary only to examine the latter branch of this proposition.

1. We think that the facts established by the bill, answer and proofs, show a 
state of the case not affected by the statute of limitations. It will be 
admitted, that if the facts established a trust of that character, "over which 
courts of common law take no notice, and over which courts of equity have 
original, peculiar and exclusive jurisdiction;" the statutory bar can not be 
maintained. Mad. Chan. 359; 7 Johns. Chan. Rep. 111.

That the respondent stood in the relation of trustee at the time the legal 
title was vested in him, there can be no question. An equitable title vested 
in the complainant on the death of M. Iler, of which a court of common law 
could take no cognisance, and over which equity has "peculiar, original and 
exclusive jurisdiction." The title or interest of Jonas Iler, who was joint 
owner of the equitable estate, which had descended from their common ancestor, 
with Abram, having been, in 1793, transferred to the respondent, he became 
tenant in common with the complainant, holding under the equitable title of 
Mark Iler. And although he may have held possession of the whole property, 
yet, as he came into possession by a conveyance from one of the parties 
jointly interested, his possession cannot be considered as adverse, but must 
be held consistent with the right of the complainant; in other words, his 
possession was the possession of the complainant. 13 Johns. Rep. 115. Joint 
tenants are trustees for each other; and assuming that the conveyance from 
Jonas Iler to Routh, was sufficient to vest the equitable title held by him in 
J. Routh, in fee, but which we deny, the respondent, from the inception of his 
claim, stood as trustee for the complainant. Up to the time when the equitable 
title which Routh set up to the land was converted into a legal title, by the 
issuance of the patent from the United States, no remedy existed at law, by 
which, if possession had been wrongfully withheld by Routh, he could have 
sought redress. Nor could he, at any period since, have maintained an action 
at law for the recovery of possession. If no action at law could have been 
maintained by the complainant, it is difficult to conceive by what analogy to 
suits at law the statute of limitations could be applied. It is acknowledged 
that neither in this country nor in England does the statute of limitations 
apply in terms to proceedings in courts of equity; "yet equity takes the same 
limitations in cases that are analogous to those in which it applies at law." 
10 Ves. Jun. 452. And where there is a concurrent remedy at law, equity will 
adopt the statutory bar which would apply in a suit at law for the same 
subject matter.

If, then, there existed no concurrent legal remedy—if the relation which 
existed and which still exists—was a trust of which a court of common law 
could not take notice, and over which equity has an original, exclusive and 
peculiar jurisdiction, it would appear that this case falls within the 
principle of those cases to which the statutory bar cannot be applied.

But if it should be held that the present is not a trust which is unaffected 
by the statute of limitations, we contend, that in consequence of the fraud 
practised by the respondent, by which we were kept in ignorance of our rights, 
the statute did not run for a length of time sufficient, anterior to the 
commencement of our suit, to bar a recovery.

The allegation of the bill, that the respondent fraudulently and studiously 
concealed from the complainant his right, is not denied. The allegation is, 
therefore, to be taken as true. If then, the facts established amount to a 
fraud in law upon the rights of the complainant; if the respondent, by an 
unauthorised use of the title papers of the complainant, procured the legal 
title in his own name, the statute only commenced to run from the discovery of 
our rights, and in this case constitutes no bar.

It will be observed that the facts charged in the bill, are admitted in the 
answer, with a general denial of the fraud. But if the facts charged and 
admitted in the answer constitute per se a fraud in law, the denial of fraud 
must be held for nothing. We think we can show, most conclusively, that a 
gross fraud was committed by the respondent upon the rights of the complainant.

The instrument, by which the sale of the land from Jonas Iler to respondent, 
is evidenced, vests in him but a life-estate for his own life; and only so far 
as Jonas Iler’s interest is concerned. Upon the death of Routh, Jonas Iler, or 
his heirs, in case of his death, would have been entitled to the reversion—the 
complainant being the heir of Jonas Iler was entitled to it. Routh knew that 
he was entitled to but a life-estate in the land, and it matters not, 
therefore, whether he knew of the existence of Abram Iler or not. But we are 
not left to conjecture on this subject; for, about the time when the land was 
confirmed to Routh by the commissioners, we find that he recognises Abram Iler 
as the heir of Jonas. What then is the case? Routh purchases a life-estate in 
the land of Jonas Iler, and takes possession of the land belonging as well to 
Abram as to Jonas Iler. Jonas leaves the country, and is lost at sea. Abram is 
a minor, helpless, and ignorant of his rights. Routh obtained from the various 
individuals, who had been at different times the owners of this land, their 
evidences of title; he procured from Mr. Coleman, an assignment of the patent, 
which had issued in the name of Row. With these evidences of title, he 
ultimately obtained from the board of commissioners, a certificate confirming 
the land to him in his own name in fee; and by which act he knew he was 
defeating the inheritance, and destroying the reversionary interest of 
unprotected orphans, or persons absent, or ignorant of their rights.

These acts come clearly within the definitions of fraud. Judge Story, in his 
most excellent treatise on equity, defines fraud to be "in the sense of a 
court of equity—all acts, omissions, and concealments—which involve a breach 
of legal or equitable duty." 2 Story’s Com. Eq. 127; as to undue concealment, 
in same, 236.

If there was a fraud practised by Routh, in obtaining a patent for the land 
from the United States, in his own name, and the complainant, in consequence 
of this fraud, was kept in ignorance of his rights, the statute did not 
commence running, until a discovery. This doctrine has been held, even in 
courts of law, where the statute of limitations has been attempted to be set 
up, in order to evade the consequences of a fraudulent act. Bree v. Holbech, 
Douglas, 654; 3 Mass. Rep. 201. In the first of these cases, the decision was 
made by Lord Mansfield; in the second, by Judge Parsons. The propriety of 
these decisions, at law, has been doubted; but, as to the correctness of this 
position applied to proceedings in a court of equity, there can be no doubt. 
In the celebrated case of Hoveden v. Lord Annesley, decided by Lord Chancellor 
Redesdale, it is clearly recognised, and most emphatically stated.

The learned chancellor says, "that pending the concealment of a fraud, the 
statute of limitations ought not, in conscience, to run; the conscience of the 
party being so affected, that he ought not to be allowed to avail himself of 
the length of time. 2 Schoale & Lefroy, 634; 4 Dessaussure’s Eq. Rep. 475; 
Troup v. Smith, 20 Johns. Rep. 47; Brown v. Lynch, 1 Paige, 158.

We insist, also, that the respondent cannot avail himself or any statute bar, 
because he has not pleaded any statute, nor does he state in his answer, upon 
what statute of limitations he rests his defence. It will not be denied, that, 
if the party had pleaded the statute of six years, or had relied in his answer 
on the same, the court would not notice any attempt to interpose any other 
statute, say, for instance, the 20 years’ statute, applied to actions of 
ejectment. The court will not search the statute book to find a statutory bar, 
which wi11 correspond with the respondent’s proofs. He should have known what 
his defence was, and should have presented it in a tangible shape for the 
consideration of the court.

And we insist, that, if any statute can be recognised by the court, as 
applicable under the state of pleadings, it must be the statute which provides 
that fifty years’ actual and uninterrupted possession shall confer a perfect 
title in fee.

If it should be insisted, that it is not now competent for this court to 
inquire into the merits of the case, as presented by the whole record, but 
only into the questions which have supervened upon granting the bill of review—
we answer this anticipated objection thus: The bill of review, as it is called 
in this case, is simply a petition for a rehearing or re-argument; and must 
have been so regarded by the chancellor and the opposing counsel. In 
confirmation of this impression, it will be observed, that there was, at the 
time of the filing of the petition, no decree of the chancellor enrolled and 
signed; that a review would not have been granted in that state of the case 
and that, if this proceeding had been regarded in the nature of a bill of 
review, the complainant would have been met at the threshold with a demurrer. 
But, admitting that it was a bill of review, we contend, that the respondent 
is precluded from objecting to the propriety of granting the review, as he has 
virtually consented to a re-argument and rehearing of the cause, by failing to 
answer, or demur to the bill of review, or to object in any other way. And as 
no exception was taken to the re—opening the cause, it matters not whether a 
bill of review, or not, could in strict propriety have been allowed. The case 
was fully opened, testimony was adduced on both sides; it was argued upon the 
merits of the whole cause, and decided upon the merits. It is from this 
decree, on the merits of the whole cause tht we have appealed; the whole 
record is before the court, and our appeal extends to all errors which may 
have intervened from the commencement of the suit to its termination in the 
chancery court.

M'Murran, for the appellees.

The first question presented to the consideration of the court is, whether the 
chancellor ought to have reviewed the original decree at all? We contend, that 
he ought not, as he did not. An issue had been directed, upon the final 
hearing of the cause, as to the legitimacy or heirship of complainant, Abram 
Iler; it was tried, and found against him; a motion made for a new trial and 
overruled, and then a final decree pronounced against him. Upon the hearing of 
the bill of review, the chancery court came to the same conclusion again, and 
dismissed the case. Was that court right in doing so? Will the court, upon the 
weight of the additional evidence adduced upon the hearing, and upon 
principles governing courts of equity, in such cases, review at all the 
original decree? All the testimony taken is merely cumulative, on the side of 
complainant to prove heirship, and on the part of defendant to disprove it; 
and no bill of review is ever sustained on such grounds. Bills of review are 
granted only for some newly discovered distinct matter, which ordinary 
diligence could not discover before; or for error apparent on the face of the 
decree. The latter is not pretended, and the former does not exist. What 
testimony was taken under the bill of review, was entirely cumulative, and 
nothing at all to show any diligence to obtain it on first hearing, or that it 
was discovered since the original decree was rendered. In support of these 
positions, I refer to the authorities cited. Blake’s Chan. 54, 55; Todd v. 
Barlow, 2 Johns. Chan. Rep. 551—553; 1 Johns. Cas. 492—494, and cases there 
cited.

But if the court should determine to re-examine the whole case, we insist the 
result would be the same upon a similar issue, and consequently, the decision 
of this court will be the same as that of the court below. There was fully as 
much testimony added under the bill of review on the part of Routh, as of 
Iler, as the depositions show. Great reliance was placed on the testimony of 
Mrs. Kimball. It was taken on the first hearing as well as the second, but 
much stretched in her last deposition. She swears to the particulars of a 
marriage, and birth of a child, which she says, took place when she was twelve 
or thirteen years of age, at the Post of Arkansas; and when her first 
deposition was taken, in 1828, she says the marriage was about forty years 
before. That would make it in 1788, when, according to all the other 
testimony, Mark Iler was in Adams county, near Natchez. Moreover, she says, 
that when her second deposition was taken in 1830, she was then about fifty 
years of age; that would make her born in about 1780, and Abram Iler was born 
between 1780 and 1785, about 1782; so that, according to her own account, she 
was about two years old at Abram’s birth! She, too, is the only one who 
pretends to have witnessed the marriage, all the others, at the Post of 
Arkansas at the time, contradict the idea that there was any thing of a 
marriage, and most of them were of an age to know and to recollect. Besides, 
the witness, Mrs. Kimball, is incompetent; she is interested in establishing 
the marriage of Mark Iler and her mother, as she would be entitled, as the 
heir of her mother, to a portion of the property sought to be recovered; her 
mother, under the Spanish laws then prevailing, if married, would be entitled 
to half, which, on her death, would descend to her children. But review all 
the testimony taken in the cause since the original hearing, and the result 
must be the same as to the legitimacy and heirship of Abram Huxton, alias 
Iler. He was called Abram after his father, Abram Huxton, or Fixton. The 
Spanish proceedings, too, show he was not the heir of Mark Iler.

But let us admit, solely, however, for the sake of argument, that he was a 
legitimate son of Mark Iler. What difference can it make in the decision of 
this cause? If Mark Iler ever had any claim to the property sought to be 
recovered by appellant, it was upon a conveyance to him, based upon nothing 
but an order of survey from the Spanish authorities, though there is no legal 
evidence of that before the court. The Spanish grant to Routh, did not issue 
till 1795, six years after Mark Iler’s death, and the grant was assigned 
directly to Job and Jeremiah Routh, for a valuable consideration, by Mrs. 
Coleman, the representative of Row, with the approbation of Row’s son. And, in 
1804, the certificate of confirmation issued to Jeremiah and Job Routh, in 
their own right, based upon the documents and proofs which they laid, in their 
own rights, before the board of commissioners. According to the acts of 
congress, passed in furtherance of the articles of agreement and cession, and 
the opinion of the Supreme Court, in the causes cited, the Spanish government 
had conveyed no title, legal or equitable, to the vendor of Mark Iler. The 
acts of congress, by its bounty alone, gave the title: and to whom? To the 
person who, under the acts of congress upon this subject, received the 
certificate of confirmation. Rev. Code, 502, 505, 506; Poindexter's Admr. v. 
Henderson, 12 Wheat. 530.

There is no fraud in this case, no connection at all between complainant and 
defendant; no pretence of unfairness on the part of Job or Jeremiah Routh, in 
purchasing the property and paying for it twice. It was done in open day, from 
the only and universally acknowledged heir in those days, and recognised as 
such by the Spanish authority. 2 Caines’ Rep. 182—185.

Again. The transcript of the proceedings under the Spanish government, in the 
first place, establishing Jonas or John Iler, (Jonas, or John being derived 
from the same Spanish word,) the universal heir of Mark Iler, and then the 
proceeding of Alexander Moore against that universal heir to recover a debt 
due by the ancestor, and selling the lands claimed by complainant to meet the 
debt to Moore, and he becoming the purchaser. These proceedings, which are 
competent evidence in translations, show clearly that the title, as far as 
there was any under the Spanish survey, vested in Jonas Iler, or if not in 
him, in Alexander Moore. Goods or chattels under the civil law, include real 
estate according to Domat. Turner’s Dig 492—495; 1 Domat’s Civ. Law, 169.

A deed, too, could be presumed, and is presumed in such cases. These Spanish 
proceedings took place in 1783, between forty and fifty years since. 1 
Cowper’s Rep. 119-31, 217. A deed will be presumed in favor of Job Routh, who 
has been so long in possession, consistently with such a deed. But 
independently of this view of the case, there is shown by these proceedings, 
and the record, an outstanding title in Alexander Moore, the purchaser at the 
sale, to satisfy the debt due him, and this is available equally in a court of 
equity, and in a court of law. In either court, the plaintiff must recover 
upon the strength of his own title, and not upon the weakness of his 
adversary’s. 7 Wheat. Rep. 158, 161; Hardin’s Rep. 101, 3. If the appellant 
has not shown a title in himself paramount to all others, he cannot recover; 
the decision must be against him. These principles apply, too, with peculiar 
force in this case, when we reflect upon the long and undisputed possession of 
Mr. Routh, of the property in controversy; and upon which long and undisputed 
possession, he confidently relies for an affirmance of the decree of the 
chancellor, independently of all other considerations.

Upon common law principles, as well as under our statute the appellant is 
completely barred by time. The depositions of all the witnesses, entitled to 
any credence, on both sides, show the defendant to be, at least, forty-five 
years of age, when suit was brought. Examine the depositions of all who 
testify as to Abram Iler’s age, especially, Israel Leonard, John Minor, 
William Adams, Mrs. Smith, James Bradley, Henry Phipps, and Christopher 
Miller, and appellant’s birth must be fixed at 1782. The same witnesses, and 
all the testimony in the record will show, that Job Routh was in the continued 
possession of the property, from 1793, at least till the day of his death, two 
or three years since; holding it thus adversely to all the world, exercising 
every art of ownership over it, putting large improvements upon it in his own 
right, for, at least, thirty—four or thirty—five years before the institution 
of this suit. There is then, clearly, an adverse, uninterrupted possession on 
the part of Job Routh, with a title believed to be a good one, at least, 
twenty-four years after Abram Iler arrived at age, and before he commenced the 
suit. Rev. Code, 183, sect. 1; Ang. on Lim. 339, 341; 2 Scho. & Lef. 607, 624, 
636; 6 Peters’ Cond. Rep. 47—55; Elmendorf v. Taylor, 10 Wheat. Rep. 152; 
Henry Miller’s Heirs v. M’Intyre, &c, 6 Peters’ Rep. 61.

Buckner, on the same side.

1. The case is now before the court, on the bill of review. If then the matter 
offered in support of that bill is not such as, upon settled principles of 
law, would induce the court to review the former decree, there is an end of 
the case. It will be seen that there is nothing, but additional cumulative 
testimony taken under this bill of review, and that, too, directed to the only 
controverted fact (the heirship) in the case. A bill of review never was 
sustained upon such grounds. They are granted only for some newly discovered 
distinct matter, which ordinary diligence could not have discovered before, or 
for some error apparent on the face of the record. See 1 Harden, 342, 451; 
Mitf. Plead. 128; 3 Marsh. 121; 3 Johns. Cha. Rep. 124, 129; 2 Hen. and Munf. 
525; 2 Mad. Chan. 382, 281, 289, 300, 541; Pirt. Dig. 258; Mitf. Plead. 134.

2. The defendant’s ancestor (Job Routh) was a fair bona fide purchaser for 
valuable consideration, without notice, and had been quietly enjoying the 
premises in question, adversely to complainants’ claim, for the period of 
about thirty—four years previous to the institution of this suit, and 
according to the testimony, some twenty-five years after the complainant 
(Abram Iler) became of age; which lapse of time we insist upon as a complete 
bar to the complainant’s bill. See Rev. Code, 193, sect. 1; 10 Wheaton, 152, 
168, 175; 2 Harris & Johns. 414; 2 Jac. and Walker, 192, 151; 9 Cowen, 530; 
strong case in defendant’s favor; Angell, Lim. 340, 1, 2, 3, 4, 5, 6, 
inclusive.

3. But the magic notion of a trust has been started up by the opposite 
counsel, to relieve against the statute of limitations. The startling position 
is assumed, that (Job Routh) a bona fide purchaser without notice and after an 
adverse possession of thirty years, is, by the act of a court of equity, to be 
suddenly transformed into a trustee, and be foreclosed from all the benefit 
which the lapse of time, connected with adverse possession, could give! And 
this too; when Routh, having purchased Jonas Iler’s part, would at least be a 
tenant in common with complainant Abram Iler, the pretended brother of Jonas. 
But no such trust can be raised here, as would bar the statute. See Ang. on 
Lim. 92, 97, 98, 132, 133, 134, 135.

4. The defendants here have an equal equity with the complainants, and have 
also the legal title, and it is a well settled principle, that a court of 
chancery interferes in favor of a prior equity, against a junior perfect 
title, upon the principle alone, that the junior purchaser bought with notice 
of the prior equitable claim, which is not pretended to be true in relation to 
Routh. See 5 Cranch, 223.

5. The complainant’s claim is based upon a Spanish order of survey, or a 
grant, and was never confirmed to them or those under whom they claim by any 
act of the government of the United States. They consequently have no title 
either legal or equitable, either by the acts of congress or the decisions of 
the Supreme Court of the United States, and there is no saving in the acts of 
congrcss in favor of infants having Spanish claims. See Rev. Code, 502, 505, 
506; Poindexter’s Lessee v. Henderson, 12 Wheaton, 540.

6. The statute of limitations applies to this case in a double aspect: 1. as 
to the adverse possession; and 2. as to the conveyance asked as a remedy. It 
is virtually a bill for the specific performance of an executory contract. Are 
the rules which govern the action of courts of equity in cases for specific 
performance, such us would warrant the relief asked in this case? The court is 
here called upon for the first time after the lapse of thirty-four years to 
enforce an executory contract, and to create a legal title out of a most 
suspicious, and doubtful equitable claim. And by whom, and against whom is 
this extraordinary proceeding asked? By one, to say the least of it, of 
doubtful legitimacy, who has slept upon his rights for twenty-five or thirty 
years, and against an honest possessor and bona fide purchaser, without 
notice. See 1 Johns. Chan. Rep. 300.

When courts will enforce a specific performance, and when not. Not, where 
there has been a change of circumstances. Not, after great length of time. The 
claim must be fair, reasonable, and equal in all its parts.

7. The question of heirship.

Will the court consider it necessary to again direct an issue on this 
question, and that too (as will be perceived from an examination of the 
additional testimony taken under the bill of review) when the case stands in 
the same aspect in relation to the proofs, as it did when the former issue was 
tried; or rather since the aspect of the case has not been changed by the 
additional testimony taken on both sides, (except to strengthen it for the 
defendants?) Wil1 not the court take the verdict of the jury upon the issue 
tried, as showing the court how this disputed matter of fact is to be decided?

Winchester, for the appellant, in reply.

1. The facts of the marriage of Mark Iler and Mrs. Hootsell in 1781 or 1782, 
and of the birth of Abram Iler, are established by the positive proof of 
Katharine Kimball, who was present at the marriage and birth. She is a 
competent witness, her credibility as a witness is not attempted to be 
impeached, there is no contradiction in her testimony, and not only the main 
facts of the marriage and birth, but every other fact stated by her, is 
corroborated and proved by nearly all of the other witnesses and exhibits in 
the cause, so that, if her evidence were entirely stricken out of the case, 
these facts would still remain proved positively and directly, by as full 
evidence as the law ever requires.

There is no evidence in the cause, which contradicts these proofs or which are 
at all inconsistent with them.

The chancellor, therefore, ought not to have directed an issue to the jury, 
and the verdict of the jury is of no weight against the proofs.

No marriage or birth, in or out of Arkansas, west of the Alleghany mountains, 
at as early a period as 1782, can be proved with as much certainty as this. 
Storys Conflict of Laws, 100; Swift’s Ev. 506; Gilbert’s Ev. 1088; 4 Bacon, 
529.

Spiritual courts have the sole and exclusive cognisance of the legality of a 
marriage in a suit directly on the question. Blackman’s Case, 11 State Trials, 
281. Trespass for adultery is the only civil case, where it is necessary to 
prove an actual marriage.

Hearsay and reputation are admissible evidence; and so also the declarations 
of deceased persons, entries in a family bible, inscriptions on a tomb stone, 
a statement in a bill in chancery, and a fortiori of the ex parte depositions 
of witnesses, whose declarations would be good, have always been held 
sufficient, in all civil suits, where pedigree or heirship was in question.

That Abram Iler was the lawful heir of Mark Iler, therefore, is incontestably 
established.

2. As a co—heir with Jonas Iler, Abram Iler was entitled to one half of 
whatever right Mark Iler had in the land in controversy at the time of his 
death, and also of the other half upon the death of Jonas Iler, he having 
conveyed his right to the Routh is for life only.

3. This right of Abram I1er, was the right of an heir claiming by descent the 
benefit, or bounty if you please, of the acts of the general government 
confirming the equitable title to the land, which the answer of Routh admits 
was in Mark Iler at the time of his death, and under which Routh had title 
confirmed in his own name and under which alone Routh in his answer still 
claims the tenure and possession of the land.

To the recovery of this right by the present remedy, the defendant in his 
answer says, he relies on the statute of limitations. To which we answer,

1. That the statute must be pleaded or insisted upon in the answer, and 
neither is done in such manner as that the court can notice it. 3 Johns. Cha. 
Rep. 384; 7 Johns. Cha. Rep. 134.

2. That the right by descent which plaintiff here seeks to enforce, was a 
direct, and express trust in Routh, and purely the creature of a court of 
equity, for which complainant never had a remedy at law, but only in equity, 
and is such a trust as is never barred by the statute of limitations. 10 
Wheaton, 176; 7 Johns. Cha. Rep. 110 to 126.

3. That if not a trust of the above nature, it is an equitable title, against 
which the defendant has never held adversely but on the contrary under it, and 
now sets it up as his sole title in the answer. 7 Johns. Cha. Rep. 127; 10 
Wheaton, 168. 176; 9 Cowen.

4. That if defendant ever has held adversely, it has been in fraud of the 
rights of Abram Iler, which fraud was kept concealed, and said Iler kept 
studiously in ignorance of his rights, until within twenty years, and 
therefore the statute is no bar. 7 Johns. Cha. Rep. 122.

Each of the above four is a full answer to the statute.

A purchaser for a valuable consideration, if he wishes to avail himself of the 
want of notice, must positively deny all notice, though it be not charged. 6 
Johns. Cha. Rep. 398, 403; 3 Johns. Cha. Rep. 345; Prec. in Chan. 226; 2 P. 
Wms. 491; 2 Johns. Cha. Rep. 566; 3 P. Wms. 244, n.; 1 Vernon, 179.

Chancery has original jurisdiction, to be exercised in sound discretion, to 
try all questions of fact, without the aid of a jury, 5 Johns. Cha. Rep. 118; 
1 Johns. Cases; and it is not bound, except in cases of bills for divorce, for 
adultery, or where there is an issue of devisavit vel non, to send a matter of 
fact to be tried by a jury, if it can decide of itself; to its own 
satisfaction on the evidence. Ibid.

That the plaintiff is a bona fide purchaser without notice, is not ground for 
a bill for relief, though it is a good ground of defence. 18 Johns. Cha. Rep. 
543.

Mr. Justice TROTTER delivered the opinion of the court.

Several questions have been presented for the determination of this court on 
this statement of the case. The first is, whether the court below had any 
authority to allow the bill of review on the grounds stated in the application 
to the court for that purpose. The rule on this subject is well settled. A 
bill of review can only be granted after an enrolment of the decree, for error 
apparent on the face of the decree, or upon some new matter, as a release, 
receipt, &c., proved to have been discovered since. 2 Mad. Chan. 536; Taylor 
v. Sharp, 3 Peere Williams, 371; 3 Atkyns, 35. In the case of Wiser v. 
Blachley, 2 Johns. Chan. Rep. 490, this rule is stated as the ground for 
dismissing the petition for a rehearing. In the case of Livingston v. Hubbs, 3 
Johns. Chan. Rep. 126, the same rule is recognised and applied. The newly 
discovered matter, for which the decree is sought to be reviewed, must not be 
relevant only; it must be distinct, and such as could not, upon reasonable 
diligence, have been ascertained. In the case last cited, the ground of the 
decree was, that certain land had been represented to the complainant to be of 
good quality, and fit for cultivation, when in fact it was not. Whether the 
land was so represented, and so defective, was the main question in the cause, 
and the newly discovered evidence was such as had a tendency to decide that 
issue. The petition for the bill of review stated that, since the decree, the 
defendant had discovered that several of the witnesses had mistaken the land 
in question, and had testified respecting lands adjoining thereto. That since 
the decree he had procured the tract in question to be surveyed, and that 
several intelligent persons had since visited it, and declared it to be as he 
had represented it. The chancellor refused the application. He said the 
defendant’s attention was called to the very fact, by the issue submitted 
under the pleadings, and he was bound to use reasonable diligence in bringing 
forward his proof on that point. A bill of review is not to be sustained 
merely to accumulate testimony. The nature of the newly discovered evidence 
must be different from that of mere accumlation of witnesses to a litigated 
fact. This is the rule in the analogous case of an application for a new trial 
at law, and it is one which is never departed from. It is a sound and salutary 
one, designed to restrain litigation, avoid perjury, and give stability to the 
tenure of property. The case before us, is very similar in its features to 
that of Respass v. M'Clanahan, Hardin’s Rep. 342. In that case, the court lay 
down the rule as it has already been stated, and proceed to say, that after 
the most diligent search, they could not find one case reported, in which a 
bill of review has been allowed on the discovery of new witnesses, to prove a 
fact which had before been in issue. If the rule were otherwise, it might, as 
was observed by the chancellor in the case of Taylor v. Sharp, 3 Peere 
Williams, 371, be used for vexation and oppression, and the cause never be at 
rest. Or, as remarked by the court in the case of Respass v. M'Clanahan, the 
dangers and mischiefs to society are too great to be endured, if, whenever a 
new witness can honestly, or by subornation, be found, whose testimony may 
probably change a decree in chancery, a bill of review is allowed. If such a 
rule were allowed, when would there be an end of litigation? The ground of the 
decree in the present case, was the verdict of the jury upon the issue, 
whether the complainant was the heir of Mark Iler. The fact of his heirship 
was expressly charged by the complainant in his bill, as the foundation of his 
title to the land in dispute, and it was expressly denied in the answer of the 
defendant. The attention of the complainant was, therefore, necessarily called 
to it, and he was bound to use due diligence in bringing forward his proof. 
This was an important point in his case; for if found against him, it must be 
fatal to his cause. He was bound to bring forward all the testimony in his 
power, and cannot be permitted to experiment upon the sufficiency of the 
evidence produced, and when that is found too weak, have permission to mend 
his hold, and add to the force or number of his witnesses. Yet this was the 
case in the present instance. After the issue has been found against him, on 
the proof which he thought proper to adduce, he asks a bill of review, not for 
any error apparent on the face of the decree, nor for any new and distinct 
matter, but to obtain the testimony of other witnesses to add to and 
strengthen his former proof. He refers to several witnesses who will make 
stronger and fuller proof of his heirship. This was, therefore, cumulative 
testimony merely, and was not proper ground for a bill of review. No objection 
was, however, made to the granting of the bill in the court below, no demurrer 
filed, nor any question in any form made upon it, and it is too late to urge 
the objection after an appeal to this court. In this case the appellees gave 
it at least an implied sanction by taking depositions, and going to trial 
afterwards before the chancellor. If the question were properly before us, we 
should have no hesitation in dismissing the bill; but it is a general rule, 
founded in much reason and great convenience, that no objection can be made in 
the court of errors which was not taken in the court below.

The second question for our consideration is, whether the complainant did 
establish the fact of his heirship as charged in his bill. This is purely a 
question of fact to be decided upon the proofs in the cause. The fact was once 
determined, by a jury, against the complainant. Bnt it is insisted that the 
chancellor erred in directing an issue to the jury, because the proof was all 
on one side, and in favor of the complainant. It is, however, a general rule 
fully sustained by authority, that the chancellor may, whenever his mind is 
thrown into a state of doubt and uncertainty as to the preponderance of 
evidence, send an issue to the country; but he has a right, with certain 
exceptions, to take upon himself the decision of every question of fact in the 
cause; and this rests in his sound discretion. 2 Mad. Chan. 474. We are 
certainly of opinion that the weight of the evidence was clearly for the 
complainant on this issue, and that the chancellor might, with great 
propriety, have so determined. But as he has seen proper to take the verdict 
of the jury, we are not at liberty to pronounce it error. It was a matter of 
discretion with the chancellor, and we can have no farther concern with it 
than to consider of its effects upon this question in the cause. The mind of 
the chancellor concurred with the opinion of the jury; and we might feel 
inclined to attach much weight to this determination, if it had not been 
subsequently opened by granting the bill of review. We are, therefore, 
constrained to consider this question unconnected with the verdict, and 
uninfluenced by it. The whole weight of the evidence is manifestly for the 
complainant. Several witnesses have sworn positively and affirmatively to the 
fact of the marriage of Mark Iler to Mrs. Hootsell, who is admitted to be the 
mother of the appellant. The ceremony of marriage was performed at the post of 
Arkansas, and by a person who swears that he was authorised by the authorities 
at that place to do so. We are not informed what was the law on this subject 
at the place where the marriage took place. It was a military post, with but 
few persons, in a remote wilderness. There was no regularly established form 
of government; and was probably governed by the usages of the mother country, 
so far as they could apply. What they were, is, however, totally immaterial. 
It is clear from the whole testimony, that there was a contract of marriage 
between Mrs. Hootsell and the complainant’s father, and that it was formally 
and solemnly acknowledged and avowed by both parties, as proved by the 
deposition of William Crooks. He testifies that they were lawfully married, 
and refers to the year when it occurred. Katharine Kimball also swears 
positively and affirmatively to the fact of the marriage, and confirms the 
statement of Crooks. She states the house where the ceremony was performed, by 
whom, and who were present. She says the marriage was celebrated according to 
law, and is particular in mentioning the presence of Mrs. Bolton. She also 
proves the birth of the complainant, about eleven months after this marriage, 
and that Mark Iler recognised him as his son. These statements are confirmed 
by the testimony of several of the witnesses, who speak of the general 
reputation which prevailed, that Abram Iler, the appellant, was the son of 
Mark Iler. It is true that several witnesses proved that the complainant was 
called by the name of Fixton. But this testimony is easily reconciled with the 
evidence of Mrs. Kimball, when it is recollected that Mark Iler separated from 
the widow Hootsell, after living with her about seven months, and that she 
afterwards lived with a man of the name of Fixton. The complainant being then 
an infant, was, of course, taken by his mother, and would very naturally be 
called by the name of his mother’s husband. This may readily account for the 
confusion of names by which he was known. But this negative evidence can never 
be permitted to control the direct and affirmative testimony of the other 
witnesses. We are, therefore, of opinion that it is clearly established by the 
testimony in this cause, that the complainant is the heir at law of Mark Iler. 
He is, therefore, entitled to recover the land in controversy, unless his 
claim has been barred by the length of time which elapsed after he attained 
the age of twenty-one before the institution of this suit, and that is the 
third and last point of inquiry.

In the case of Smith v. Clay, Ambler 645, the rule is laid down by Lord Camden 
to be, that, as often as parliament had limited the time of actions and 
remedies to a certain period, in legal proceedings, the court of chancery 
adopted that rule, and applied it to similar cases in equity. In the case of 
Elmendorf v. Taylor et al., 10 Wheat. 152, it is said, that, from the earliest 
ages, courts of equity have refused their aid to those who have neglected for 
an unreasonable length of time, to assert their claims, especially where the 
legal estate has been transferred to purchasers without notice. The same 
doctrine is stated and applied in the case of Clapp v. Bromagham, 9 Cowen. 
530. Courts of equity have, therefore, uniformly adopted the limitation which 
is prescribed in the analogous proceeding at law. For, although the act of 
limitations does not extend to them in terms, yet they have always 
acknowledged the obligation of them. By the provisions of the first section of 
the act for the limitation of actions, very real, possessory, ancestral, 
mixed, or other action for any lands, tenements, or hereditaments, shall be 
brought and instituted within twenty years next after the right or title 
thereto, or cause of such action accrued, and not after, &c. A proviso is then 
added in favor of infants, &c. If more than twenty years had elapsed after the 
appellant attained the age of twenty-one years, before the commencement of 
this suit, his remedy is, therefore, clearly barred by this statute. The bill 
of complaint, in this case, was filed in January, 1827, at which time, 
according to the evidence, the complainant was upwards of forty years of age, 
and when, according to the admissions of the parties, he had been of age more 
than twenty years. But it is insisted by the appellant, that the defendants 
are not entitled to the benefit of the bar prescribed by the statute, because 
they are tenants in common with the complainant. The entry upon the land by 
Jonas Iler, one of the heirs of Mark Iler, deceased, and under whom the 
defendants claim title, was as heir of Mark Iler, it is said, and his entry 
and possession were not adverse to, but in consonance with the rights of Abram 
Iler, the other heir. It is unquestionably true, that in general, the entry of 
one heir will inure to the benefit of all, and that if the entry is made as 
heir without claim of an exclusive title, it will be deemed an entry not 
adverse to, but in consonance with the rights of the other heirs. But it is as 
clear that one heir may disseise his co-heirs, and hold an adverse possession 
against them, as well as a stranger, and notwithstanding an entry as heir, the 
party may afterwards, by disseisin of his co-heirs, acquire exclusive 
possession, on which the statute will run. Such was the determination of the 
Supreme Court of the United States in the case of Ricard v. Williams, 7 Wheat. 
59. It is true in that case, the court say, that ouster or disseisin is not to 
be presumed from the mere fact of sole possession, but that it may be proved 
by such possession, accompanied with a notorious claim of an exclusive right. 
In the case before us, Jonas Iler took possession of the land in dispute upon 
his father’s death, and we have the strongest evidence of his claim of an 
exclusive right as heir at law from the fact of the sale made by him shortly 
afterwards, to Job and Jeremiah Routh, and taking to himself the whole of the 
purchase money. The Rouths paid Jonas Iler six hundred dollars for the land. 
This was in 1793. And it is very evident that no matter what relation Jonas 
Iler may have occupied towards Abram, anterior to this transfer, from this 
time that relation ceased, and there was a disseisin. No force or violence is 
necessary to constitute an ouster. Any act of one joint tenant which is 
evidence of a claim of exclusive ownership, such as taking all the rents and 
profits to himself will constitute a disseisin. But how can it be said, that 
the subsequent possession of the Rouths was in consonance with the rights of 
Abram Iler? Is there any thing in their conduct which recognises his rights? 
On the contrary, is not their possession accompanied by a multiplicity of 
acts, all demonstrative of a claim of exclusive ownership? Shortly after the 
purchase from Jonas Iler, they procured from the representatives of Row the 
patent which had issued in his name from the Spanish government, and also 
obtained from his widow and executrix, a conveyance of the legal title to the 
land to themselves. And afterwards, on the 2d day of October, 1805, obtained 
from the board of commissioners, west of Pearl river, a certificate of the 
confirmation, of their grant. In all these steps, no notice is taken by them 
of Abram Iler, nor any recognition of his rights. On the contrary, these 
proceedings do assert in so many words, an exclusive right in the Rouths. How 
then can it be insisted, that the possession of the Rouths in this case was 
not adverse to the rights of Abram Iler? This case is precisely the same in 
principle with that of Clapp v. Bromagham, 9 Cowen, 550. In that case, it is 
stated, that the ancestor under whom the petitioners claimed title to the land 
in dispute, died a lunatic, and that he was seised of the premises in fee. 
That he had nine children at his death, amongst whom were the petitioners, and 
Peter and Isaac Bromagham. After the ancestor became a lunatic, and about four 
years before his death, Peter and Isaac, by the common consent of the family, 
took the possession and management of the farm; that Peter was afterwards 
appointed by the court of chancery, the committee of the person and the estate 
of the lunatic; that Peter purchased the share of Isaac in the premises, after 
which, he had the sole possession of the whole of the land at the time of the 
death of the lunatic, and claimed to be the absolute, and exclusive owner of 
the same; that he continued to hold the same as his own adversely to all other 
persons, until he sold and conveyed the same to John Clapp, the plaintiff in 
error, who continued in possession, as the sole and absolute owner for more 
than twenty years. Upon this statement of the facts, Clapp in answer to the 
claim of the petitioners for partition of the land insisted upon the statute 
of 1imitations of twenty years as a bar; and it was argued by the petitioners, 
that the parties stood in the relation of tenants in common to each other, and 
that the possession of one of them was in judgment of law, the possession of 
all of them. It was said, as it has been in the case before us, that the title 
of the defendant was derived from the same source with that claimed by the 
petitioners, and that under the title derived from Peter, the defendant 
entered as tenant in common with the petitioners. But the chancellor said 
there was no color for these suggestions. On the contrary, Clapp entered as 
purchaser of the whole, his title was adverse to the petitioners, he never 
held in common with them, nor acknowledged any right in them. How then, asks 
the chancellor, could that seisin and possession inure to the benefit of the 
petitioners? If the possession of the defendant in that case was deemed 
adverse, the possession of the Rouths in the present case is equally so. The 
two cases are identical in principle. According to the modern and approved 
interpretation of an adverse possession, it is held to embrace every 
possession held by the possessor in exclusion of others, in the present case, 
Jonas Iler took possession of the land upon the death of his father, and 
continued in possession as sole owner, and claiming the whole, until he 
conveyed the 1and to the ancestors of the appellees. That conveyance was most 
clearly the exertion of an act of ownership, inconsistent with the rights of 
others, and was virtually an ouster. The subsequent possession of the Rouths, 
was manifestly adverse to the complainant. The sale by Jonas Iler, was 
perfectly decisive of the character of his entry, and the exclusive nature of 
his possession. Though it be true that the entry of one tenant in common is 
the entry of both, yet, if one enter, claiming the whole, this will be an 
entry adverse to his companion. 14 Viner, 512. These principles are deemed 
decisive of the present case. Jonas Iler claimed the whole estate, and sold it 
to the appellees, who have held it adversely to all the world, for nearly 
thirty-five years, keeping all others, during that time, out of possession. 
This is, therefore, considered by us to be a clear case for the application of 
the statute of limitations. But it is contended, that the statute does not bar 
the appellant’s claim in this case, because the Rouths obtained possession of 
the land by fraud, and that in equity and good conscience, they are to be 
regarded as trustees for him. But there is not the slightest foundation for 
this charge. The fraud is positively denied in the answer, and no witness was 
called to prove it. We are not at liberty to presume fraud, and when relied 
on, it must be strictly proved. We are not able to perceive in the whole 
record, any fact which exempts this case from the operation of the statute.

The decree of the chancellor must be affirmed, with costs to the appellees, 
and the bill dismissed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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