Keller v. Auble

The opinion of the court was delivered, May 14th 1868, by Thompson, C. J. Title by the Statute of Limitations in the ancestor of the parties to this suit was negatived by the jury, and the only party who could complain of this is the defendant in error. But she makes no complaint, and therefore all question on that subject is out of this case. There was abundant evidence in the case that Samuel Keller, the father of both parties, had long claimed and exercised acts of ownership over the land in dispute, and up to the time of his death. Whether his title was perfect or not we need not inquire. His possession descended to his heirs as tenants in common. They would succeed by descent cast. Was it competent, therefore, to one of the executors, which the plaintiff in error and defendant below was, to buy in an outstanding title and hold against his co-tenant ? The authorities cited by the defendant in error, to which many more might be added, most clearly establish that it was not, and to them we refer. His purchase was for the benefit of the tenants in common, if they or any of them chose to claim it. Magdalene Keller did so choose, and recovered. The defendant below claiming in opposition to the trust, it was not essential that a tender should have preceded the institution of the suit: Beck v.' Ührich, 4 Harris 503. This equity was preserved in the conditional verdict. Seeing no error in any part of the case, The judgment below is affirmed.