Green v. Kellum

[258] The opinion of the Court was delivered by "Woodward, J. The argument of the plaintiff in érror rests on the assumption that Kellum’s possession was without color of title; and if this foundation be taken away, the argument falls into ruins. Long before there was any possession of the Barnes and Montgomery warrants, as early as 1808, according to the defendants’ testimony, Luther Kellurn, the elder, went into possession of the Nesbitt survey and made an improvement claiming to the eastern line, which is admitted to be the true original boundary between the Nesbitt and the Barnes and Montgomery surveys, and exercised acts of ownership quite up to that line by taking fire-wood and carrying on sugar-works. What was this but color of title ? Such acts indicate clearly the bona fides of his claim to the Nesbitt survey, and the complete disseisin of all other claimants from every part of the tract. “ To give color of title,” said Chief J. G-ibson, in McCall v. Neely, 3 Watts 72, “would seem not to require the aid of a written conveyance, or a recovery by process and judgment, for the latter would require it to be the better title. I ■would say that an entry is by color of title when it is made under’ a bond fide and not pretended claim to a title existing in another. It is impossible to say, therefore, that a disseisor claiming to be the true owner of a survey, as he may in fact be without being named in the warrant, does not enter by color of title.” And if such air entry and claim be color of title, then, according to all the cases, the constructive possession is coextensive with the color, and twenty-one years of such occupancy gives title even as against the real owner. But as against a subsequent intruder there can be no question that Kellum’s possession was coextensive with the lines of the Nesbitt survey: Hoey v. Firman, 1 Barr 300; Bishop v. Lee, 3 Barr 217. Why should not an actual possession, though wrongful as to the legal owner, be protected from the trespass of one having no right ? An intruder into unoccupied lands is not an outlaw. If he enter peaceably, he has a right to remain peaceably until expelled by the owner or some one who can show a superior right of possession, and his possession is so far an object of the law’s regard, that time will mature it into a perfect title. As between intruders, the first in possession is best in right. Rose and his alienee had no title or color of title to Jonathan Nesbitt, and no possession, for the jury have found Kellum’s possession to have extended to the east line, the admitted boundary of the tract. The entry of Rose, then, whether to survey or to take timber, was a breaking of Kellum’s close, for which an action lies. But again. According to the meagre and defective statements of the paper-books we find old Luther Keljum sued, in 1822, as a mortgagor of the Nesbitt tract — that he confessed a judgment on [259] which a sheriff’s sale of the tract was made to John Jameson, who afterwards conveyed 106 acres 40 perches, part of the tract, to Adrian Bush, who conveyed the same to him, Kellum. Here was color of title according to the most commonly received ideas of the phrase, and further evidence that his entry from the first had been under a bond fide claim to the Nesbitt survey. That the 106 acres embrace the land in dispute must be inferred from the evidence having been admitted without objection. The assumption, then, that Kellum was a mere squatter without color of title, insufficient, if well founded, to justify the entry of a subsequent intruder, is utterly baseless. The plaintiff below holds the land in controversy by a descent -cast — his ancestor entered in 1808, and occupied under color of title. According to the oldest principles of the common law, a disseisor has a good possession against everybody but the true owner, and his heir is in by a better right than himself; and according to the modern doctrine by which the statute of limitations is administered in Pennsylvania, his title was perfected long ago even as against the original owner. The entry of Bose to survey at any time during the running of the statute did not toll it, for it is the entry of the owner alone that can have this effect, and Bose had not a shadow of title to the Nesbitt survey. On the whole, we think there was no error in the instructions given, and the judgment is affirmed.