Barnhart v. Pettit

[139] The opinion of the Oourt was delivered by Lewis, J. A defendant in ejectment claiming uncier the statute of limitations must show the boundaries of his possession as they existed and were claimed twenty-one years before the commencement of the suit; otherwise he will be confined to the land cultivated or enclosed for that period of time. If he entered under color of title, and claimed and used the land designated in his conveyance, this, if the land be described with reasonable certainty, will be sufficient. If he claimed ups to the line of the plaintiffs survey, used it as his own, exercising the usual acts of ownership over, and paying taxes upon the whole tract, twenty-one years before the suit was brought, the statute will protect him for the whole. But the claim to the whole extent of the plaintiff’s boundaries, and the acts of ownership under it, must be shown affirmatively by the defendant to have existed for the period required by the statute. It is not to be presumed, without evidence, that an intruder, without color of title, adopts the boundaries of another title as his own. Nor will it answer the purpose of the defendant to make claim to the plaintiff’s boundaries, for the first time, on the trial of the cause. Making claim to them at an earlier period, short of the time prescribed by the statute, will be equally ineffectual. Where the plaintiff claims under a warrant and survey containing four hundred acres, the payment of taxes on two hundred acres by the defendant, is not sufficient evidence that the latter adopts and claims to the extent of the plaintiff’s survey. If the assessment corresponds neither with the plaintiff’s survey nor with the extent of the defendant’s possession as designated on the ground, it will not entitle the latter to enlarge his possession, so as to include the quantity assessed. A term which indicates nothing but quantity, furnishes no boundaries nor other points of description sufficient of itself to locate and circumscribe the possession. After the plaintiff below had shown a legal title derived from the Commonwealth, the defendants gave evidence of a possession by John Holden, and a deed from Holden to William Gray, dated 20th October, 1801. The plaintiffs then read, as rebutting evidence, deeds from several of Holden’s heirs, dated in 1846. The boundaries set forth in these deeds are not evidence of the limits and extent of the defendants’ possession under the prior title, derived from Holden himself in 1801. After the testimony has closed, and the argument has commenced, an application to introduce new evidence, must be disposed of according to the discretion of the Court below. The decision is not the subject of review here. The offer to prove “the extent of the boundary of the defendant’s claim,” amounts to nothing more than an offer to prove their present boundary. This was not material. [140] The boundary as claimed twenty-one years before suit brought, is what was demanded by the exigency. This was not offered in any stage of the cause. The defendants below obtained a verdict for so much of the land as was contained in parts “ numbered .1, 2, and' 3, in Robert Brister’s diagram.”' This is presumed to include the land cultivated or enclosed twenty-one .years before suit brought. They were not entitled, under the evidence, to anything more. They have, therefore, suffered no injury by the instructions of the Court, nor by the admission of. evidence, in regard to the points of the cause. As the first, second, and third errors assigned have nothing to do with the merits of the case, we do not think it necessary to dispense with the rule of the Court in order to consider them. They are not specified in the manner required by the rule, and are therefore disregarded for the reasons stated in Rice v. The Farmers’ and Drovers’ Bank of Waynesburg. Judgment affirmed.