ROOT v. WOOLWORTH

ROOT v. WOOLWORTH. APPEAL FROM THE 'CIRCUIT COURT -OE THE HOTTED STATES FOR THE DISTRICT OF NEBRASKA. No. 77. Argued and submitted November 10 1893. Decided November 27, 1893. In 1870, M., a citizen of Indiana, filed a bill in equity in' the Circuit Court of the United States for the District of Nebraska against. R., a citizen of Nebraska, fo establish his right to real estate near Omaha, to •which R. set up title. Each claimed under a judicial sale against P. M.' obtained a decree in 1872, establishing his title, and directing R. to convey to him, or, in default of that, authorizing the appointment of a master to make the conveyance. R. refused to make the conveyance,.and it was made by a master to M. under the decree. The entire interest of M. came' ' by mesne conveyances to W., a citizen of Nebraska. M. reentered upon the premises, and set up the title which had been declared invalid in the decree of 1872. W. thereupon filed in the same court au ancillary bill, praying that R. be restrained from asserting bis pretended title and from occupying the premises; • that he might be decreed to have no interest -in the lands; that a writ'of possession issue, commanding the marshal summarily to remove R., his tenants and agents from the premises, and that R. be perpetually enjoined from setting up his claims. R, demurred on the ground of want of jurisdiction by reason of both parties being citizens of the same State. The demurrer was overruled, the defendant answered, and upon the pleadings and proofs a decree vvas entered for plaintiff, in conformity with the prayer in the bill-. Held, ■ (1) That the bill was clearly a supplemental and ancillary bill, such as. the court had jurisdiction to entertain, irrespective of the citizenship of the parties; (2) That the original decree not only undertook to remove the cloud on M’s title, but it included and carried, with it the right to possession of the premises, -and that right passed to W as privy in estate; (3) That certain facts set up as to an alleged transfer by M. of his interest to a citizen of Nebraska before filing- his bill could not be availed of collaterally aftor-sucli a lapse of time, and with- no ex-, cuse for the delay; (£) That the property claimed could be fully identified; (5) That until R. should give notice that his holding was adverse to W., the latter was entitled to treat it as a holding in subordination to. the title of the real owner under the decree of 3872. The appellee, as >a privy in interest and estate, ■ filed the bill in this case for the purpose of carrying into execution a former decree of the court, rendered in 1873, against the appellant in favor of Oliver P. Morton, by which’ the latter’s right and title to a certain parcel of land was settled and established, and to which title and interest the appellee thereafter succeeded. The proceedings in which the original decree was rendered were begun in 1870 in the Circuit Court of the United States for the District of Nebraska by Oliver P. Morton, in a suit against Allen Root, the appellant, to establish his right to certain premises near the city of Omaha, and to have -the claim which Root asserted thereto declared a cloud upon his title. Both parties claimed the land--under judicial sales previously-had against one Roswell G. Pierce. The decree established .the-superiority of Morton’s title, and ordered that Root should execute a conveyance of the premises to him within a designated time, and upon- his failure so to do a special master, appointed for that purpose, was invested with the authority and directed to make such conveyance. Root did not appeal from this decree,-which remains in full force and unannulled or reversed, but he refused to make the conveyance, and the special master thereupon, by deed, transferred the property to Morton. Thereafter, in June, 1873, Morton conveyed an undivided half interest in the premises to James Woolworth, the appellee, and tlie other' half interest to his brother, William S. T. Morton. Upon the death of the latter his executors, ' under power and authority conferred by his will, transferred to Woolworth the other, half interest in the premises.’ Being thus invested with the'entire title, and Root having reentered or- resumed possession of the premises, Woolworth filed the present .bill against him, in the same court,, -to carry into effectual execution the decree which had been rendered against Root in Morton’s favor. In his bill, after reciting the proceedings under which Morton originally acquired title to the. premises, the suit under which that title was established as against Root, and the conveyance to Morton under the decree of the court,' Woolworth set forth his acquisition of the title, and’-alleged "that he had' laid thé property out ‘into 'streets, blocks, 'and - lots, and made it an addition to the city of Omaha; that'he. had sold several of those lots, and that he had .paid the taxes .on all of the property since 1873; that he had remainód in undisturbed possession from 1873 up to within a short time before the filing' of the bill, at which time Root had assumed to take possession of' the premises, or a portion thereof, by building a' fence around’ the same and a house thereon, and in exercising other acts of alleged ’ ownership over the property. The bill further alleged that in reentering upon the premises Root claimed no rights. therein or title thereto, except such as were asserted by him in opposition to 'Morton’s right and title in the original suit '; that his'object in retaking possession was'to induce parties to accept leases under him, and thereby drive the complainant to a multiplicity of actions to recover possession and reestablish his rights to the premises, and it was averred that, “ in order to* carry the decree.'of this court made on the 8th of 'May, 1873, . into execution, and give, to your orator the full benefit thereof it-is .necessary that it shall be supplemented by an order of injunction hereinafter prayed, and unless such injunction be allowed to your orator such decree will be ineffective and your orator will be subjected to a multiplicity of suits in order, to recover possession’ of the said premises from the parties to whom said defendant will lease the name. If left to himself, not only will the said defendant subject your orator to numerous actions for the recovery of the possession of said premises from many parties whom the said defendant will induce to entér upon the same, but, as. your orator is informed and believes, the said defendant threatens to, and .unless restrained by the order and injunction of your honors will, institute divers.actions in respect of the title of the.said premises and thereby vex, annoy, and harass your orator.” The bill further alleged that in the sheriff’s d'eed to Morton? 'under the original judicial proceedings against Pierce, the. . premises were described as follows : • “ All that piece of land beginning at the northwest corner of section twenty-eight, thence south eight chains and five links’; thence-south eighty-, ■five degrees twenty chains and two links; thence, north nine chains- and twenty links; thence west twenty-chains to, the place of beginning; all being in .township fifteen, range thirteen east of the sixth principal- meridian, in said county of Douglas,” which presented an apparent obscurity or defect in the fact that the word east was omitted in the second call after the words “eighty-five,” and that the defendant claimed that this defect -was so radical as to afford-no identification of the premises, and rendered the decree void; but the complainant averred that the sufficiency cf that description was considered in the suit of Morton against Hoot, and that it was there held that the omission was no substantial defect, such as prevented the title from passing and vesting in Morton. The prayer of the bill was that the defendant be, by order and injunction of the court, enjoined and restrained from asserting any right, title, or interest, in the said premises, and from occupying the sainé or any part thereof, or leasing or pretendíhg to lease, or admitting under any pretence whatever, any party, 'save the complainant, into the said premises, or upon the. same, and from making any verbal .or written contract, deed, lease, or conveyance, affecting the said premises, or the possession thereof, or the title thereto, and from excluding the complainant from said premises,-, or any part thereof, or preventing him from taking sole and exclusive possession of the same ; and that by decree it might be declared that the said defendant has not, and never had, any interest, whatever in the said lands, as'had been already declared and adjudged in the former decree; and that a writ of possession issue out of the court directed to the marshal, commanding him hummarily to remove the defendant, his tenants, and agents therefrom; and that the injunction as prayed for might be made perpetual. To this bill the defendant Root" demurred'for the‘reason that the court had no jurisdiction, because both complainant' and defendant Avere citizens of the same State; because the bill was a proceeding in a court of equity in the nature of an ejectment bill,- and because the complainant .had a speedy and adequate remedy at law. The demurrer was overruled, the court basing its-action upon the ground that the bill was ancillary or supplemental to the original cause- of' Morton v. Root, and was, therefore, not open to the objections taken' against it. Root'then-answered the bill, setting up the same defences interposed by him in the case of Morton v. Root, and further alleged that the'decree in that case Avas void because Morton and his -attorney had practised a fraud upon the court in concealing the fact'- that in 1869, prior' to the -institution of that suit, Oliver P. Morton had transferred and conveyed the prem-' ises in question to his brother, William S. T. Morton, Avhich conveyance had been duly recorded in Douglas County, Nebraska, so' that Oliver R. Morton had' no title Avhen he instituted his original suit, nor when the decree Avas rendered against defendant. The answer further set up that the premises-were so defectively described in the sheriff’s deed to Morton, under the latter’s attachment proceedings against Pierce, as to' render the same ineffectual and inoperative to vest title to the premises in controversy. The defendant also claimed that he had been in open and adverse possession of the premises since May ■1, 1869, and that the' complainant’s rights were, therefore, barred by the-statute, of limitations. He further alleged that, the dépree in the suit of Morton against Root was one simply-to remove a cloud upon the title and not to establish or confer any right of .possession. . - • - Upon pleadings and proofs, the Cilcuit Court rendered a decree in appellee’s favor, in conformity, with the prayer of his bill.. 40 Fed. Rep. • 723. From that' .decree the' present ' appeal was prosecuted. Mr. TJpton M. Young and Mr. George W. Coveil, for appellant, submitted on their brief, in which they contended : I. There is a defect in the jurisdiction of the Citcuit Court, which is -apparent on the. face of the bill. Equity will not entertain a bill solely for purposes that could be accomplished by an action in ejectment. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466 ; Ellis v. Davis, 109 U. S. 485 ; Killian v. Ebbinghaus, 110 U. S. 568; United States v. Wilson, 118 U. S. 86 Speigle v. Meredith, 4 Bissell, 120. II. The Circuit Court of the United States has no jurisdiction of a suit between parties who are citizens of the same State. Van Antwerp v. Hulburd, 8 Blatchford, 285; Livingston v. Van Ingen, 1 Paine, 45; Merserole v. Union Paper Collar Co.; 6 Blatchford, 356. III. That the bill cannot be sustained against the defendant as a bill of peace, is fully established by the following points and authorities. In regard to bills of peace between single adverse claimants, it may now be regarded as. settled that, unless the title has been established at law, except where the rule has been changed by statute, the court will not interrere. . 3 Pomeroy’s Eq. Jur. § 13.94. -Possession as well as an established -legal title is necessary to the maintenance of a bill of peace of this class. 3 Pomeroy’s Eq. Jur. §§ 1394, 1396; Orton v. Smith, 18 How. 263. That this action cannot be maintained as.a suit, to quiet the plaintiff’s title, and to declare that the defendant has not and never had any interest whatever in the lands described in complainant’s bill, is evident from the well-known .rule that jurisdiction is .only exercised by courts of equity when the estate or interest to be pro tec ted. is equitable in its nature, or when the remedies at law are inadequate where the estate or interest is legal. Whether or not the jurisdiction will be exercised depends upon the fact that the estate or interest to be protected is equitable in its nature, or that the remedies at law are inadequate, where the estate or interest is legal — a party being'left to his legal' remedy where his estate or interest is legal in its nature, and full and complete justice can thereby be done. De Witt v. Hays, 2 California, 463; S. C. 56 Am. Dec. 352; Hinchley v. Greaney, 118 Mass. 595. The remedy by injunction to yield up or quit possession of land, and the writ of possession to summarily remove a defendant from land, are writs which are only granted by, and issued out of courts of equity, in aid of a decree in chancery, where there has been a foreclosure of equity of redemption, and a sale of mortgaged premises been decreed, and the defendant or any person who has come into possession under him, pending the suit, refuses to deliver up the possession, on demand, to the purchaser under the decree.. The principle may be stated in its broadest generality, that in cases where .the primary right, interest, or estate, to be maintained, protected, or redressed, is a legal one, and a court of law can do as complete justice to the matter in controversy both with respect to the relief granted and to the modes of procedure by which such relief is conferred, as could be done by a court of equity, equity will not interfere even with those peculiar remedies w7bich are administered by it alone, such as injunction, cancellation, and the like, much less with those remedies which are administered both by it and the law, and which, therefore, belong to the concurrent jurisdiction. Southampton Dock Co. v. Southampton &c. Harbor Board, L. R. 11 Eq. 254. And the same doctrine applies under the reformed system of procedure. Kyle v. Frost, 29 Indiana, 382. ' See also, sustaining the general .principle as stated above, Grand Chute v. Winegar, 15 Wall. 373; Insurance Co. v. Bailey, 13 Wall. 616; Hipp v. Babin, 19 How. 271. IY. The court is without jurisdiction to hear and deter- ' mine the merits of this case, because both parties are citizens-of the State of Nebraska, as alleged'in the bill; — because complainant shows, by his bill that his remedy is at law, by .ejectment instead of in equity; — because complainant has not made, such a case by his bill as would authorize the court to hear and determine the same, as a court of equity, even though complainant and defendant were citizens of different States. Y. We contend that, as no steps were ever taken by Morton, under judicial proceedings, or otherwise, to disturb the actual possession of Allen Root, the statute of .limitations-was neither suspended nor interrupted. The Supreme Court of Missouri, • in case of Mabary v. Dollarhide, 98 Missouri, 198, held that a judgment in ejectment, not followed by any writ, ñor by taking possession under it, does not suspend the statute of limitations. - The Supreme Court of Kentucky, in the case of Smith v. Hornback, 4 Littell, 232, Reid that a-judgment in ejectment, never executed, and under which possession has never been demanded; does not stop the running- of the statute of limitations. The case of Morton v. Root was a void proceeding resulting in May, 1873, in a void decree to remove a cloud from Morton’s supposed title, with which he had parted before his bill was filed, and a title which he did not have when the final decree was rendered. There .was nothing in the decree that contemplated disturbing the continuity of Root’s possession. In Smith v. Trabue, 1 McLean, 87, it was held that a judgment in- an action of ejectment against a defendant, who holds adversely, does not of itself suspend the statute of limitations. To do this there must be a change of possession. •The following cases support the ¡pune'view: Dol v. Reynolds, 27 Alabama, 354; Jackson v. Haviland, 13 Johns. 229. The decree quieting the title in Morton, would not break the continuity of Root’s possessioñ, nor stop the running- of the .statute of limitations. YI. Waiving, then, all other questions, we regard the adverse possession of this defendant, and those under whom-he claims, as conclusive upon the rights of the plaintiff. In the case of Ellis v. Murray, 28 Mississippi, 129, under the third section of the act of limitations, passed in 1844, it was held that “ actual adverse possession for ten years vests a full and complete title to the land in possession; and a party having had such possession might sue for the recovery of it at any time within the period limited in the first section, without further evidence of his title than that he had had ten years in actual adverse possession; that it was intended to secure a right of. property by the possession of ten years.” See also Beaupland v. McKeen, 28 Penn. St. 124; S. C. 70 Am. Dec. 115; Hoey v. Furman, 1 Penn. St. 295 ; S. C. 44 Am. Dec. 134; Webbs v. Hynes, 9 B. Mon. 388 ; S. C. 50 Am. Dec. 515; Clement v. Perry, 34 Iowa, 564; Clark v. Potter, 32 Ohio St. 49; Noyes v. Dyer, 25 Maine, 468; Spear v. Ralph, 14 Vermont, 400. YII. Oliver P. Morton by his deed on the 19th day of August, 1S69, conveyed the property in controversy to William S. T. Morton. Said deed was a valid one under the laws of Indiana, where no witnesses were required, and being valid where made was valid under the laws of Nebraska!. Green v. Gross, 12 Nebraska, 117, 123. Oliver P. Morton had no title at any time during the pend-ency of his suit against Allen Boot; the court, therefore, was without'jurisdiction to render its decree of. May 8, 1873. The decree in that case having been obtained on the representation that Morton was the owner of the property, was a fraud upon the court, and the decree being fraudulent can be defended against by Boot in this suit. See Marshall v. McGee, 33 Hun, 354. Mr. Burton N. Harrison, (with whom was Mr. James- L. Woolworth on the brief,) for appellee. [MAJORITY — Mr. Justice Jackson,] Mr. Justice Jackson, after stating the case, delivered the opinion of the court. It is not necessary to notice or consider separately the numerous assignments of error presented by the appellant. They may be reduced to the following propositions: (1) That the.court had no jurisdiction to entertain the bill, because it is in the nature of an ejectment bill, and that there, is a full and adequate remedy at law ; (2) that there was fraud on the part of Morton and his attorney in obtaining the former decree of 1873 by concealing the fact that Morton, before the beginning of his suit against defendant, had transferred •the premises to his brother, William S. T. Morton ; (3) that there was such defective description of the premises, in the Morton suit and the original decree, as rendered that decree inoperative to vest the title of the land in controversy; and (4) the defendant’s adverse possession of the property. In support of the assignments of error covered by the first .proposition, it is urged on behalf of appellant that the suit should be treated and regarded as an ejectment bill to recover the possession of real estate, such as á court of equity cannot entertain in favor of a party holding a legal title like that which the complainant asserts. It is undoubtedly true that a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466; Ellis v. Davis, 109 U. S. 485 ; Killian v. Ebbinghaus, 110 U. S. 568; Fussell Gregg, 113 U. S. 550, 554. If the bill in the present ease could be properly considered as an ejectment bill, the objection taken thereto by the defendant would be fatal to the proceeding; but instead of being a bill of this character it is clearly a supplemental and ancillary bill; such as the court had jurisdiction to entertain. Shields v. Thomas, 18 How. 253, 262; Thompson v. Maxwell, 95 U. S. 391, 399 ; Story’s Eq. Plead. §§ 335, 338, 339, 429. It is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees, and judgments, which remain unte versed, when the subject-matter and the parties-are the same in both proceedings.- The general rule upon the subject is thus stated in Story’s Equity Pleading, (9th ed.,) § 338: “A supplemental bill may also be filed; as well after as before a decree; and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution ; or that proper directions may be giv.en upon some matter omitted in the original bill, or not put in issue by it, or by the defence made to it; or to bring forward parties before1 the-court, or it 'may be used to impeach the decree, -which is the peculiar case of a supplemental bill, in the nature of a bill of review, of which .we shall treat hereafter.. But where a supplemental bill is brought in aid of a decree, it is -merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.” Under this principle Morton could undoubtedly have brought the bill to carry into effect the decree rendered in his favor against Boot, and it is equally clear that his assignee, or' privy in estate, has a right to the same relief that Morton could have asserted. On this subject it is stated in Story’s Equity Pleading, § 429: “ Sometimes such a bill is exhibited by a person wdio was not a party, or wrho does not claim under any-party to the original dewee; but who claims in a similar interest, or who is unable to entertain the determination of his own rights, till the decree is carried into execution. Or it may be brought by or against any person el aiming as assignee of a party to the decree” ■ The appellee in the present case occupies -that position, and he should not, any more than Morton, to whose rights he has succeeded, be put to the necessity of instituting an original or independent suit against Boot, and relitigate the same questions which were involved in the former proceeding.. The jurisdiction of courts of equity to interfere and effectuate their own decrees by injunctions or writs of assistance in order, to avoid the relitigation of questions once settled between the same parties, is well settled. Story’s Eq. Jur. § 959; Kershaw v. Thompson, 4 Johns. Ch. 609, 612; Schenck v. Conover, 13 N. J. Eq. (2 Beasley) 220; Buffum’s case, 13 N. H. 14; Shepherd v. Towgood, Tur. & Rus. 379; Davis v. Bluck, 6 Beav. 393, In Kershaw v. Thompson, the authorities' are fully reviewed by Chancellor Kent, and need not be reexamined here. It is said, however, on behalf of the appellant, that the ■original decree only undertook to remove the cloud upon, the title,' and did not deal with. the subject of possession of the premises, and that the present bill, in seeking to have possession delivered up, proposes to deal with what was not concluded by the former decree. This is manifestly a misconception of the force of the original decree, which established and concluded Morton’s title as against -.any claim of the' appellant, and thereby necessarily included and carried with ■it the right of possession to the - premises as effectually as if the defendant had himself convejmd the same, The decree in its legal effect? and operation entitled Morton to. the possession of the property, and that right passed to the appellee as privy in estate. In Montgomery v. Tutt, 11 California, 190, there was a decree of sale, which did not require or provide for the delivery of possession of the premises to the purchaser. Subsequently the defendant refused to surrender possession, and a wriu.of assistance was sought by the purchaser, to' place him in possession of the premises under the master’s deed. Field, J., delivering the opinion of the court, said : “The power of the court to issue the judicial writ, or to make the order and enforce the same by a writ of .assistance, rests upon'the obvious principle that the power of the court to afford a remedy must be coextensive with its jurisdiction over the subject-matter. .Where the court possesses jurisdiction to .make a decree,.it possesses the power to enforce its execution. It is true that in the present case the decree does not contain a direction that the possession' of the premises be delivered to the purchaser. It is usual to insert a clause to that effect, but it is not essential. It is necessarily implied in the directioa for the sale and execution of' a deed. The title held by the mortgagor passes under the decree to the purchaser upon the consummation of the sale by the master’s or sheriff’s' deed. As against all the parties to the suit, the title is gone; and, as the right to the possession, as against them, follows the title, it Avould be a useless and vexatious course to require the purchaser to obtain such possession by another suit. Such is not the eourse of procedure adopted by a court of equity. When that court adjudges a title to either real or personal property, to be in one as against another, it enforces its judgment by giving the énjoyment of the right to the party in Avhose favor it has been decided.” The principle thus laid doAvn is directly applicable to the present case-. The bill being ancillary to the original proceeding of Morton against Root, and supplementary to the decree rendered therein, can be. maintained Avithout reference to the citizenship or residence of the parties. There is consequently no. force in the objection that the court beloAV had no jurisdiction in this case because the appellee and the appellant Avere both citizens-.of Nebraska. Krippendorf v. Hyde, 110 U. S. 276; Pacific Railroad v. Missouri Pacific Railway, 111 U. S. 505. It is next contended on the part of the appellant that the decree sought to be carried into execution is void because there- Avas fraud .on the part of Morton in .concealing from the court the fact that he had transferred the premises in . August,' 1869, to his brother, William S. T. Morton. That' conveyance, as set up in the answer, Avas duly recorded in the register’s office of Douglas County prior to the filing of Morton’s bill against the .appellant. It is not shoAvn in the ansAver Avhy the appellant did not avail himself in the former trial of this transfer .of Avhich he had constructive notice. Nor does it appear from any averments in the ansAver,-or from the.proofs, that his rights were in 'any Avay prejudiced or affected thereby. He Avas not prevented by that transfer from exhibiting fully his- OAvn case, or setting up his superior title to the premises, Avhich Avas the subject-matter of tbe'contest between Morton and himself* The appellant- could not by a direct proceeding have impeached the former decree for this alleged fraud, because, even if it were sufficient to invalidate that decree, he shows no.reason why it was -not interposed or set up in the former suit. The facts set up in the answer relating to the conveyance of 1889 from Morton to his brother do not, of themselves, constitute such a fraud as Avould be sufficient to vacate the decree in a direct proceeding to impeach it, and' certainly it cannot be collaterally attacked in. an answer, as the appellant has sought to do, after such a lapse of time, and Avith no valid excuse given for the delay. Hammond v. Hopkins, 143 U. S. 224. But aside from this objection to this defence, it is clearly established by the proof in the cause that, before Morton instituted his suit against . Boot, a Avriting Avas executed between himself and his brother, William S. T. Morton, Avhich operated to vacate the conveyance of August, 1869, and to revest the title to the property in OliA'er P. Morton, so that there Avas -actually no lack of ■ title to the premises in Oliver P. Morton at the date of the .institution of his suit against Boot. The objection interposed by .the defendant, therefore, is clearly wanting in any force or merit. In respect to the next position assumed by the defendant, that the description of the property Avas so defective as not to vest Morton Avith any title to the premises in controversy, it is .sufficient to say that the same point Avas set. up in the former suit, but Avas overruled, because the testimony given by survejmrs clearly established that the omission of the Avord . east from the second call of the description in no Avay affected the identification of the property, and that by reversing the calls the word east Avould be necessarily included in-the description. The same testimony, in substance, Avas introduced in this case, and established that the description in the sheriff’s deed to Morton fully identified the land in question. As to the remaining contention, that the appellant had been in adverse possession of the premises since 1869, it appears from the proof in the cause that he did not reenter or taBe possession thereof until 1888. The statute of limitations, therefore, does not constitute any bar to the complainant’s right.to maintain the bill. But .aside from this, the appellant stands in the samo position now that ho did in the former suit, when it was decreed that he had no right, title, or interest in the property. If, since that decree, he has enclosed a part of the land, cut wood from it, or cultivated it, he would be treated and considered'as holding it in subordination to the title of Morton and his privy in estate, until he gave notice that his holding was adverse, and in tho assertion of actual-ownership in himself. In his position he could not have asserted adverse possession after the decree against him, without bringing express notice to Morton or his vendees that he was claiming adversely. Without such notice the length of time intervening between the decree and the institution of the present suit would give him no better right than he previously possessed; and- his holding possession would, under the authorities, be treated as in subordination to the title of the real owner. This is a well established rule. Jackson v. Bowen, 1 Wend. 341; Burhans v. Van Zandt, 7 Barb. 91; Ronan v. Meyer, 84 Indiana, 390 ; Jeffery v. Hursh, 45 Michigan, 59; Jackson v. Sternbergh, 1 Johns. Cas. 153; Doyle v. Mellen, 15 R. I. 523; Zeller's Lessee v. Eckert, 4 How. 289. We are of opinion that the decree below was clearly correct, and should be Affirmed,.