Rifener v. Bowman

The opinion of the court was delivered, by Woodward, C. J. The subject of controversy was eight acres of unimproved woodland, which both parties claimed under deeds from Philip Kuhns, the former owner of a tract of nearly five hundred acres. Philip Kuhns undertook, in 1813, to divide the tract equally between his son, Jacob Kuhns, and his son-in-law, Adam Bowman, and for this purpose he employed James Murry, the deputy surveyor of the county, to run and mark the necessary lines. It would seem from the testimony delivered on the trial below, that Murry’s lines, as first run, did not make an equal division, and that he and the parties went back upon the land and ran off till it was equally divided. Murry made a draft of his survey, and in 1822, when the deeds were drawn, this draft was referred to in the deeds, hut in copying the courses and distances the scrivener mistook the course S. 56° E. 95 6-10 perches for 25 6-10, and so wrote it down in Bowman’s deed. The deed was recorded as written, but on production of the original at the trial, in pursuance of notice, it appeared that Bowman, or some one for him, had attempted to correct the mistake, and had blotted out the length of that course. On behalf of the plaintiff, who claimed under Jacob Kuhns, counsel asked the court to say that the erasure and alteration of the deed of Philip Kuhns to Bowman, if wilfully made, rendered the whole deed a forgery, and the defendants cannot protect themselves under it, or any copy of it on record. The court admitted that the fraudulent alteration of a deed after delivery avoids it, but said the evidence on which the defendants rested was the record of the deed, which contained no erasure, and that the original deed was introduced by the plaintiff himself. On the ground that the record was legal or sufficient evidence of defendants’ title, they refused the instruction asked for. Although we are not prepared to say that where a deed has [318] been materially altered after it has been recorded, the record is any better evidence of title than the deed itself, yet we are clearly of opinion that, in the circumstances of this case, there was no error in refusing to affirm the plaintiff’s point. The plaintiff’s suit was trespass for entering upon unimproved woodland, and the great question in the cause- was whether the locus in quo was within the lines of his deed. If it was, he had both the constructive possession, which title always draws to itself, and the actual possession, which results from residence upon and cultivation of the tract, of which the woodland was part — but if the locus in quo was not within his lines, he had neither the constructive nor the actual possession of it, and could not maintain trespass, whether the defendants had title or not. In another view the objection taken to defendants’ deed was immaterial. If a grantee of land alter or destroy his title-deed, yet his title to the land is not gone. It passed to him by the deed, the deed has performed its office as an instrument of conveyance, and its continued existence is not necessary to the continuance of title in the grantee — but the estate remains in him until it has passed to another by some mode of conveyance recognised by law. It is the instrument which is rendered void, not the estate: 1 Greenl., § 568 ; Withers v. Atkinson, 1 Watts 236. It was not necessary, therefore, that the court should pronounce upon the effect of Bowman’s alteration of his deed. The plaintiff did not claim under it, and his own deed was not abridged or affected by what was done. If the eight acres belonged to his half of Philip Kuhns’s tract, he had his right of action; if it did not, he had no right to sue in respect of it whether Bowman had preserved or destroyed his muniment of title. The essential question in the case, therefore, was a question of fact, and was properly submitted to the jury. All the evidence of acts of ownership upon the debateable land, of claim on one side and of disclaim on the other, as well as of lines and boundaries, was fairly submitted to the jury, and they found against the plaintiff. But the court is complained of for not instructing the jury that when marked lines on the ground differ from the plot or survey, the lines on the ground must be taken as the true lines of division. This proposition evidently had reference to the experimental lines first run by Murry, but which were abandoned when it was found they would not effect an equal division.. Though it be true of official surveys of vacant land, that the lines on the ground constitute the true survey, yet rejected lines provq nothing, and ought to be obliterated. -Much more should erroneous lines be rejected that were run in this unofficial, parental effort to divide a tract equally between a son and a son-in-law. If the courses and distances in the deeds made an equal division, which the lines on the [319] ground did not, the jury had ground for presuming that some of the lines first run were rejected, and those mentioned in the deed were finally adopted. And it was quite competent for them to correct the mistake of distance in one of the courses, as expressed in the deed, by the plot of the survey from which the deeds were drawn, and which they ought to have pursued. The final objection to the court’s ruling is that they refused to give effect to the Statute of Limitations in behalf of the plaintiff’s title. He insists that for more than twenty-one years he had used this woodland as farmers ordinarily use woodland adjacent to their farms, and that he had thus acquired title, even though it were not within the lines of his deed. But, according to the doctrine of Ament v. Wolf, 9 Casey 331, the plaintiff’s failure to reside or cultivate within the lines of the tract to which the woodland belongs, is decisive against his attempt to set up the Statute of Limitations. In Hole v. Rittenhouse, 1 Wright 116, it was said to be apparent from all the authorities, that to maintain an actual possession of woodland, as such, it is indispensable that the intruder take actual possession by residence or cultivation of part of the tract to which, the woodland belongs. Here the jury have found that the woodland belongs to the tract that was set off to Bowman, and within the lines of that tract the plaintiff does not claim to have ever resided or cultivated. His occasional trespasses, therefore, to take timber, constitute no possession under the statute. The judgment is affirmed.