Upon a full consideration of the papers which have been laid before me & of the situation in which the Swearingens are placed by the several decrees in the case of Hite and others agt Fairfax

I am of opinion

     First, That the Swearingens & those under whom they claim, having become purchasers of part of the 1200 acres in 1751 from Lord Fairfax and consequently purchasers pendente lite would have been bound by the decree of 1786 tho' not parties to the suit, and would therefore if that decree as it affects the Land in question were it in force, be bound to convey the same to the plaintiffs.

     Secondly That the Effect of that decree so far as it respects this Land is done away by the decree of the 5th of August 1790 and leaves the Hites out of the question and places Browning & the present possessors in the same situation as to any dispute between them as if the first decree had not been made.

     Thirdly, I think that no process under any of those decrees can reach the present possessors, and of consequence that they are not bound to deliver it up to Browning until he or those claiming under him have asserted and successfully established their Title to it against the present possessors.

     Fourthly I think that if Browning does assert his right he must recover upon the principles of the former decree unless the possessors can set up some better Title than under Lord Fairfax or unless there be some circumstances peculiarly favourable to their case, because it is not to be expected that the Court will vary from the principles of the former decree. Yet I think, that they will be at liberty to use any means of defence in their power in the same manner as if that decree had not been made.

     Fifthly I would in any event advise the possessors to retain their possessions until legally evicted, as a contrary conduct might endanger any recourse which they may be entitled to against those under whom they have derived their Title with warranty.

     Sixthly As to those who have given up their possessions, I do not think that they can thereby be bared from asserting their Titles if any they have as this incautious conduct seems to have proceeded from compulsion or misrepresentati<on> and the proper mode of proceeding would be I think by Ejectment.

     What may be the fate of a litigation between Browning & the Swearingens I cannot possibly conjecture as it must depend upon facts unknown to me.

     I observe that there are cross suits now depending in the High Court of Ch[ancer]y between Browning's Representatives & Josiah Swearingen & others, the one to compel a conveyance from Swearingen & the other a Conveyance from Browning under an agreement— this suit should be attended to.