Maris, Seitz and Stahl, Circuit Judges.
These are appeals by the plaintiffs from a judgment of the District Court of the Virgin Islands dismissing their action which had sought a decree removing from their title to Parcel No. 1 of Estate Friise, No. 13 Coral Bay Quarter, on the island of St. John, the cloud created by certain conveyances made by or to the defendants, and confirming their title to that parcel of land.
To fully understand the issues which these appeals present certain background facts must be kept in mind. In early Danish times the rural parts of the islands of St. Thomas, St. John and St. Croix were divided into large tracts of land for agricultural purposes called "estates". Each estate was given a distinctive name by which it was known and by which ordinarily it was conveyed and otherwise dealt with. In each island numbers of estates were grouped together in insular geographical subdivisions known as "quarters". Many, if not most, of these estates are no longer intact, having been subdivided and resubdivided over the years into smaller and smaller parcels of land. Nonetheless, the use of the original estate name has been almost universally continued to designate the geographical area which it formerly covered and in which the present subdivided parcels of it are situated. Thus, the plaintiffs' land is known as Parcel No. 1 of Estate Friise, No. 13*fn1 Coral Bay Quarter, St. John.
The territorial system for recording of deeds and other instruments affecting the title to land in the Virgin Islands has always been based upon the use of the estate, in rural areas, as a geographical unit. Thus, the indices in the recorder of deeds' office of the recorded deeds and other instruments affecting the title to particular parcels of land are arranged by estate names rather than alphabetically by grantors' and grantees' names. Each estate has a page or pages assigned to it in which are listed chronologically notations of and references to the place of record of the recorded deeds and other instruments conveying or otherwise affecting the title to all the parcels of land situated within its former boundaries which are described as subdivisions of that estate. This recording system resembles the Torrens System in some respects although without the assurance of judicial registration of title which that system provides. Under the Virgin Islands system the descriptive use of the name of the former estate in which a parcel of land lies is obviously of primary importance in dealing with or affecting the title to that parcel of land as well as in searching the records with respect to it.
In the case before us the facts as found by the district court and as disclosed by the overwhelming weight of the evidence are these:
In the southeastern part of Coral Bay Quarter of the island of St. John were two estates, Estate Friise, No. 13 of the Quarter, and, adjoining it on the south, Estate John's Folly, No. 14 of the Quarter. Each of these estates fronted on the sea and the old coastal road ran through each of them in a general southerly direction on its course from Coral Bay to Lameshur on the south coast of St. John. It is a dispute as to the location of that portion of the boundary line between the two estates which runs from the old public road to the sea which is at the bottom of the present controversy.
One of the difficulties in the case is that while both Estates Friise and John's Folly had boundaries which were well known to the older inhabitants of the area no surveys of either estate which precisely defined their common boundary are known prior to a 1960 survey of Estate Friise to which reference will be made later.
The records in the Recorder of Deeds' office indicate that on June 4, 1897 James and Maria Christina Duvergee conveyed Estate Friise (said to contain 75 acres) to Maximian and Gustave Bornn. On January 8, 1912 Maximian conveyed his one-half interest to Gustave. On June 8, 1927 Gustave and Rosita Bornn conveyed Estate Friise, inter alia, to Herman O. Creque, and on January 14, 1945 Herman O. and Emily Creque conveyed the estate, inter alia, to Fritz Allen Smith, who gave an option to the plaintiffs on October 12, 1956 to purchase the upper portion of Estate Friise, approximately 20 acres, and a portion of Estate John's Folly, approximately 8 acres, the latter presumably being Parcels 14G (6 acres) and 14H (2 acres) of that estate which he had acquired from Herman O. and Emily Creque by deed November 5, 1947. Smith died on January 20, 1957 before the option was exercised.
In December 1960 Lucy Smith, widow of Fritz Allen Smith, filed an action to quiet title in the district court, division of St. Thomas and St. John, at Civil No. 294-1960, entitled "Lucy Smith and other heirs of Fritz Allen Smith, deceased, plaintiffs, vs. 54.9 acres of land and all persons owning or claiming an interest in 54.9 acres of Estate Friise, No. 13 Coral Bay Quarter, St. John, V.I., as more particularly described herein, defendants." The complaint filed in that action prayed that the plaintiff's title to Estate Friise be quieted by reason of their adverse possession thereof for more than 15 years and that they be declared the owners thereof. The complaint described the estate by metes and bounds in accordance with a survey which had been made by N. O. Wells, a St. Thomas surveyor, on December 16, 1960. This survey indicated that Estate Friise contained 54.9 acres, more or less, and that it included in its southernmost part adjoining Estate John's Folly an area of about six acres lying between the old public road and the sea which the defendants claim to be a part of Parcel 141 of Estate John's Folly belonging to them and which is here in controversy. In that case one Cynthia Miller, daughter of the present defendant Eliza George, appeared by counsel for herself "and her relatives", but interposed no defense. No one else appeared and the court on August 14, 1961 decreed Lucy Smith and the other heirs of Fritz Allen Smith to be the owners of the 54.9 acres of Estate Friise as described in the complaint and shown by the Wells survey. The decree was recorded in the office of the Recorder of Deeds and indexed under Estate Friise. No mention was made in those proceedings of Estate John's Folly, or any of its subdivisions, except as adjoining property and the decree was not indexed under Estate John's Folly.
On July 31, 1961 Wells made a survey of a proposed subdivision of a portion of Estate Friise, designated Parcel No. 1, comprising the southwesterly portion of the estate and consisting of 27.3 acres, more or less. The southeasterly portion of Parcel No. 1 as shown by the Wells survey, lying between the old public road and the sea and consisting of about six acres, comprises the area in dispute which the defendants claim to be a part of Parcel 14I of Estate John's Folly. On December 21, 1961 the district court entered an order in the probate proceedings in the Estate of Fritz Allen Smith, deceased, authorizing the conveyance of Parcel No. 1 of Estate Friise to the plaintiffs pursuant to the option agreement of October 12, 1956. In anticipation of this order Lucy Matthias Smith, individually and as executrix of the estate, conveyed Parcel No. 1 of Estate Friise, as described in the Wells survey of July 31, 1961, to the plaintiffs by deed dated November 8, 1961. It is upon the decree of August 14, 1961 and the title acquired through this deed that the plaintiffs rely to sustain their claim.
One further complication should be mentioned. It appears that Parcels 14G (6 acres) and 14H (2 acres) of Estate John's Folly were acquired by Gustave Bornn many years ago from A. L. or Sara James and Henrietta Jensen, respectively, and were in turn conveyed by him and his wife to Herman O. Creque by their deed of June 8, 1927. As we have already indicated, Herman O. Creque and his wife conveyed these two parcels of Estate John's Folly to Fritz Allen Smith by deed dated November 5, 1947. However, no reference to Parcels 14G and 14H of Estate John's Folly appears in the district court proceeding and decree of August 14, 1961 or in the subsequent deed from Lucy Matthias Smith to the plaintiffs, although, as we have seen, a reference to the sale of 8 acres of Estate John's Folly as well as 20 acres of Estate Friise does appear in the option agreement of October 12, 1956 between Fritz Allen Smith and the plaintiffs. It does appear from the testimony, however, that Sara James and Henrietta Jensen each lived, many years ago, in houses situated on the northwest side of the old public road in what the plaintiffs now claim as their property and describe as Parcel No. 1 of Estate Friise. This parcel adjoins on its southwestern side what is admittedly a part of Estate John's Folly and it may well be that these two parcels of land, having been incorporated by the plaintiffs' predecessors in title into Estate Friise, were ignored as separate parcels in the Wells survey and in the conveyance to the plaintiffs. Surveyor Wells testified in this connection that "I never found Parcels 14G and H that belonged to Mrs. Smith. * * * I never found where they are."
We turn then to the disputed tract of six acres which lies between the old public road and the sea in the southeasternmost portion of what the plaintiffs claim as Parcel No. 1 of Estate Friise and which the defendants claim as part of Parcel 14I of Estate John's Folly. The recorded title to Parcel 14I begins with a deed from D. Evans and others to Henry James dated July 28, 1871. Henry James was drowned at sea in 1891. It appears from the undisputed evidence and the district court found that the disputed tract was occupied by Johanna James, the widow of Henry James, from 1891 until her death on November 1, 1935. There she lived amidst a large family of children and grandchildren; there she cultivated a garden, and there she was buried. On the tract near where her house stood is a well which is known locally as the John's Folly Well. The northeast boundary of the disputed tract on which Johanna James lived follows an ancient fence running on a direct line from a small rocky islet in the sea called "Almond Rock" to an ancient hardwood post on the ...