Elliott v. Cumberland Coal & Coke Co. as against the complainant's prior and better title. The title of defendant to grant No. 5,061 is separate and distinct from that to grant No. 4,975. There has been no actual adverse possession within No. 5,061, and the only possession which complainant has to any part of 5,061 is constructive; that is, by virtue of his assurance of title. But defendant has a like constructive possession to No. 5,061 under his grant. It is not shown who has the true title to No. 109. It appears that no claim adverse to complainant has been set up since the entry was made, and it is insisted that, in view of the long lapse of time, it must be treated as abandoned, and hence can not be set up by defendant to defeat complainant. We think we need not pass upon this question. Neither party deraigns his title back to the 109-acre entry, and complainant does not claim through that entry, but through his deed and adverse possession. If there has been no adverse possession within the limits of 5,061, then complainant can recover no part of it. While the possession of complainant is adverse to No. 4,975, because within its boundaries, it is not adverse to 5,061, because not within its boundaries. The fact that the lines of the tract extend into 5,061 does not matter, unless there be actual possession within the lines of 5,061. In order to determine the superiority of titles, it is necessary that they should be put in contest, but this is not done as between the land claimed by complainant within grant Elliott v. Cumberland Coal & Coke Co. 5,061 and the grant itself. Under this view of the case we are of opinion complainant is entitled to all the land within the lines of his deed that lie within the boundaries of 4,975, but to none that lie within the boundaries of 5,061, although embraced in the lines of his deed to the 400-acre tract. The decree of the court of chancery appeals is modified accordingly, and, if the parties desire, the cause will be remanded to the court below to ascertain the true location of the boundary line between Nos. 4,975 and 5,061; otherwise final decree will be entered here, and writs of possession will issue accordingly, if desired. The costs of the appeal will be paid by the complainants, and of the court below will be divided. ABANDONMENT. INDEX.* 1. Of homestead by becoming a nonresident.... 217 2. Intention to retain homestead will not prevent for- 217 ABATEMENT. 1. Death of one of several plaintiffs before judgment in 346 2. None after judgment, when..... 346 3. Death of one of several statutory beneficiaries does not 346 ABDUCTION. 1. Indictmest in the language of the statute is sufficient.. 17 17 17 17 17 17 ACCOUNTING. 1. For rents as between tenants in common. 711 2. But not as against a mortgage prior to partition suit.... 711 ACTIONS. 1. For breach of implied warranty in the sale of machinery 67 2. Right not waived by acceptance, use, payment, failure a justice's warrant upon appeal to circuit court....... 77 5. At law, what errors are corrected on appeal. 343 *This index was prepared by R. T. Shannon, Esq., of the 755 ACTIONS-Continued. 6. Civil action for damages will not lie against a judge for ACTS CITED AND CONSTRUED. 1. For regulation and ventilation of mines. 1881, ch. 170, 2. Power in courts of law to compel discovery in suits law except for certain damages. 1877, ch. 97........64-65 135, 137, 138, 139, 140, 141 152 6. Privy examination of married woman to her will is not 7. No reversal unless for errors which affect the merits. 155 .... 179 - 8. Tax sales, and recitals of valid tax deed. 1801, ch. 12. Municipal power to levy taxes to pay municipal bonds 262 ......328, 329 ... 319 13. Municipal power to levy taxes to pay municipal bonds 344 ...... 15. For ventilation of coal mines and collieries, and for pro- .368-369 tection of human life. 1881, ch. 170..... |