Brolaskey v. McClain

— 160 — The opinion of the court was delivered, May 14th 1869, by Williams, J. This was an ejectment for a lot of ground in the city of Philadelphia, on the south side of Market, formerly High street, commencing at the distance of 79 feet from the east side of Schuylkill Third, and running eastward along Market street 20 feet, and extending in depth 306 feet to the Chestnut street lots. It is intersected by a court 25 feet wide, now called Barker street, which divides the property into two lots — the one fronting on Market street being 176 feet deep, and the other fronting on Barker street being 105 feet in depth. The plaintiff claimed that he had shown a good legal title to the premises in controversy under the deed of Richard Peters, the patentee of the Commonwealth, and his grantees; and that the defendant had shown no such possession as would give him a title under the Statute of Limitations. The defendant claimed that he had shown a subsisting and available outstanding title to the property under prior deeds of Richard Peters to Wm. Poyntell and Noble C. Neilson; and that the plaintiff had shown no such possession in himself, and those under whom he claimed, as would give him a title under the statute. The court instructed the jury that the deeds of Peters to Poyntell and Neilson conveyed to them the lot in dispute, and of course that it could not pass by the subsequent conveyance to Kerr, and therefore that the plaintiff could not recover under the paper title derived from Peters; and if he could recover at all, it must be upon proof of adverse possession of twenty-one years by himself or those under whom he claimed. As all the assignments of error relating to the charge may be readily grouped and arranged under one or other of the positions taken by the parties on the trial to which we have referred, it will not be necessary to notice them specifically and in detail. The first and main question is, did the plaintiff show a good legal title to the premises in controversy ? Or, did the defendant show a subsisting and available outstanding title in the devisees and heirs of Poyntell and Neilson ? To show title in himself, the plaintiff gave in evidence a patent from the Commonwealth to Richard Peters, dated Eebruary 1st 1823, for a lot 238 feet in front on the south side of High street, beginning at a corner of Herbert Springett’s lot, at the distance of 79 feet from Schuylkill Third street, thence eastward along High street 238 feet, and extending in depth 306 feet to the Chesnut street lots. He next gave in evidence a deed from Richard Peters to James Kerr, dated December 28th 1827, for a lot 79 feet in front on the south side of Pligh street, commencing at the distance of 79 feet eastward from Schuylkill Third street, thence eastward along High street 79 feet and extending in depth 306 feet; bounded west by a lot now or formerly of Herbert — 161 — Springett, and east by ground formerly of Richard Peters. He then showed that James Kerr died on the 24th of January 1856, intestate, and gave in evidence three deeds from his heirs at law, dated June 12th 1861, December 9th 1862 and April 4th 1863, conveying their entire interest to the plaintiff in the above-described lot, which includes the 20 feet in controversy.. The defendant, for the purpose of showing an outstanding title superior to the plaintiff’s, gave in evidence an exemplification of the record of the proceedings of the Supreme Executive Council, showing an assignment to Richard Peters in 1790 of a lot of ground on the south side of High street, containing in front 238 feet, and in depth 306 feet; bounded on the east by Schuylkill Eourth street, and on the west by Herbert Springett’s lot; and the delivery of the possession to him by the sheriff on the 30 th of March 1798. He next gave in evidence a deed from Richard Peters to William Poyntell, dated October 18th 1808, for a lot of ground on the south side of High street, containing in front 172 feet, and in depth 176 feet to a court 25 feet in width — now Darker street — bounded west by ground said to belong to Herbert Springett and others, and east at the distance of 66 feet from Schuylkill Eourth street, by other ground of Richard Peters: also deed from Richard Peters to Noble C. Neilson, of the same date, for a lot on the south side of the 25 feet court, containing 172 feet in front, and extending in depth 105 feet to the Chestnut street lots; bounded on the east by jother ground of Richard Peters, and on the west by ground belonging to Herbert Springett and others. He then gave in evidence an exemplification of the decision of the board of property, dated June 7th 1814, deciding that 66 feet of the ground on High street adjoining Schuylkill Eourth street, part of the 238 feet assigned to Richard Peters, belonged to the heirs of James Pearson, and that Peters’ lot of 238 feet lies adjoining Springett’s lots. The award concludes as follows: “ The board, being fully satisfied with the correctness of these facts, have no doubt but the jury who assigned the 238 feet to Richard Peters made a mistake in giving Schuylkill Eourth street as a boundary, and that said Peters’ claim was intended to adjoin Herbert Springett, and extend the 238 feet eastward along High street. * * * * The board believing that there is no interference of claims, that Peters’s 238 feet lies adjoining Springett’s lots, and that the lots claimed by Pearson’s heirs were appropriated before the assignment to Peters; they therefore decide in favor of Pearson’s heirs.” He also gave in evidence a certified copy of a draft made by the surveyor-general, showing the lot assigned to Peters as laid off in pursuance of the decree of the Supreme Executive Council, dated December 4th 1790, and agreeably to the decision of the board of property, dated June 7th 1814. This draft shows that the lot adjoins Springett’s. — 162 — The plaintiff' gave in evidence a deed of partition of the estate of William Poyntell, deceased, among his devisees and heirs, dated October 24th 1816, showing that the 172 feet on High street, conveyed to him by Peters, was divided into four equal shares or purparts, each 48 feet in front, and allotted as follows : — * To William Poyntell, the lot commencing 66 feet from the west side of Schuylkill Fourth street. To the trustees of Ann Johnson, the lot commencing 109 feet from the west side of Schuylkill Fourth street. To the trustees of Rebecca Caldcleugh, the lot commencing 152 feet from the west side of Schuylkill Fourth street. To the trustees of Sarah Relf and children, the lot adjoining that of Rebecca Caldcleugh, “being the westernmost part of a larger lot which Richard Peters, by deed dated October 18th 1808, granted to decedent in fee.” All of these lots are described as containing 43 feet in breadth on High street, and in length or depth 176 feet. He also gave in evidence the record of an ejectment brought by Richard Peters against Henry Wester, in the Supreme Court, at July Term 1818, for a lot on the south side of High street, beginning 79 feet from the corner of Schuylkill Third street, and extending 79 feet east along High street, and in length or depth 306 feet; bounded east by ground formerly granted by Richard Peters to William Poyntell and others, and west by ground now or late of-John Crane and others; in which, as shown by the record, he recovered a verdict on the 21st of November 1825, and obtained judgment thereon on the 12th of the following December. He also gave in evidence the record of another ejectment, brought at the same time by Richard Peters against John McNamee for the lot above described, in which he recovered a verdict on the 2d of December 1824, subject to the opinion of the court on the whole evidence, and obtained a judgment thereon on the 27th of December, upon which a writ of possession was issued and returned by the sheriff “ levied and sheriff received costs.” This record was subsequently excluded by the court after the plaintiff had closed his evidence. Did the court then rightly instruct the jury that the deeds of Peters to Poyntell and Neilson conveyed to them the lot in dispute, and that the plaintiff’s title to the same, so far as it depended upon the deed of Richard Peters, had failed ? In other words, did the evidence show a good outstanding title to the lot in the devisees and heirs of Poyntell and Neilson? The 238 feet originally assigned to Peters, as we have seen, adjoined Schuylkill Fourth street; the whole of which, with the exception of 66 feet at the corner of Schuylkill Fourth and High street, he conveyed to Poyntell and Neilson. As there were 396 feet in the square, the 238 feet did not extend to Herbert Springett’s lots, but stopped at the eastern line of the 79 feet for which — 163 — Peters brought the ejectments against Wester and McNamee, and which he subsequently conveyed to James Kerr. If the deeds of Peters to Poyntell and Neilson were intended to convey only 172 feet, then it is clear that they do not embrace the 79 feet which he conveyed to Kerr. But if they were intended to convey to the line of Herbert Springett’s lots, then they embraced the 79 feet of which the lot in controversy is part. There is a manifest discrepancy of 79 feet between the distance and the adjoiner called for by the deeds, and, if there were no other circumstances in the case, the call for Springett’s lot as an adjoiner or boundary would undoubtedly control the distance. Where the lines are not run and marked on the ground, and there are no other circumstances equally decisive and controlling, the calls for adjoiners or other fixed boundaries invariably govern the calls for courses and distances, when there is a discrepancy between them, for the reason that it is easier to be mistaken in a measurement than it is in a boundary: Mackentile v. Savoy, 17 S. & R. 104; Murphy v. Campbell, 4 Barr 485; Cox v. Couch, 8 Id. 147; Petts v. Gaw, 3 Harris 218; Mathers & Boynton v. Hegarty, 1 Wright 64; Speakman v. Forepaugh, 8 Id. 372. But the rule is equally well settled that the lines actually marked on the ground constitute the survey and control the distances, even where the draft of the survey or the description in the deed calls for natural or other fixed boundaries: Mageehan v. Adams, 2 Binn. 109; Walker v. Smith, 2 Barr 43; Thomas v. Mowrer, 3 Harris 139; Younkin v. Cowan, 10 Casey 200; Darrah & Carrier v. Bryant, 6 P. F. Smith 69. Now it is true that in this case there are no. trees showing the marks of the surveyor’s axe, nor any posts or other monuments set up by him indicating the corners of the lots or the linos actually run on the ground; but we have other equivalent facts and circumstances which identify the lot with as much certainty as it could.be by lines actually run and marked .on the ground. It is evident that the inquest in making the original assignment to Peters, intended to assign him only 238 feet, commencing at the corner of Schuylkill Fourth street as the eastern boundary. The writ under which they were acting authorized an assignment of only 238 feet. When he conveyed to Poyntell and Neilson the 172 feet, it is manifest that he intended to convey all the lot assigned to him with the exception of the 66 feet adjoining Schuylkill Fourth street, which he regarded as the eastern boundary of his 238 feet. There is no evidence that he claimed beyond the 238 feet until after the decision of the board of property, awarding the 66 feet next Schuylkill Fourth street to Pearson’s heirs, and deciding that the jury made a mistake in giving Schuylkill Fourth street as a boundary of the 238 feet which they assigned to him, and that his claim was intended to adjoin Herbert Springett, and — 164 — extend the 238 feet eastward along High street. And in accordance with this decision he brought the ejectments against Wester and McHamee for the recovery of the 79 feet adjoining Herbert Springett’s lots. The evidence shows that Poyntell took possession of the 172 feet adjoining the 66 feet awarded to Pearson’s heirs, and extending to the 79 feet for which Peters brought the ejectments, and that he died seised thereof. There is not a particle of evidence that he ever had possession of any part of the 79 feet lying between his lot and Herbert Springett’s, or that he ever claimed- any title to it under his deed from Peters; nor is there any evidence that his devisees or heirs ever had possession of, or claimed title to, any portion of the 79 feet adjoining Herbert Springett’s. On the contrary, in 1816, eight years after the date of the deed to Poyntell, his devisees and' heirs, as we have seen, divided the 172 feet equally between them, and have continued to hold the same in accordance with the partition then made. In the ejectments brought by Peters, in 1818, against Wester and McNamee, and in his deed to Kerr he describes the 79 feet as bounded east by ground formerly granted by him to William Poyntell and others; and it has been separated from the 172 feet by a fence during the greater part, if not the whole of the intervening period. Moreover, 59 of the 79 feet lying next the 172 feet have been in the undisturbed possession of Peters and those claiming under him ever since the recovery and the execution of the writ of possession in the ejectment against Mc-Namee. Is it not, then, perfectly clear, from the concurrent and subsequent acts and declarations of the parties, that the deed to Poyntell was intended to convey only the 172 feet of which the grantee took possession, and that this was the understanding of both parties ? And is it not equally clear that the call for Herbert Springett’s lots, as a western boundary, was a mistake ? And if so, is the rule that a call for adjoiners controls the distance when there is a discrepancy, so inflexible that it cannot yield to the manifest intent of the parties, as evidence by their acts and declarations for a period of more than half a century ? Are we compelled so to construe the deed as to defeat, or may we so construe it as to give effect to the intent of the parties? We think that, under the facts and circumstances of this case, the court erred in the rigid application of the rule, that calls for adjoiners control distances, and that the learned judge ought to have instructed the jury that if they believed, from the uniform acts and declarations of the parties, that the call for Springett’s lot as a western boundary was a palpable mistake, and that the deeds were intended to convey only 172 feet; that then they did not embrace the land in controversy, and the title was not in the devisees and heirs of Poyntell and Neilson. Rut even if the deeds to Poyntell and Neilson embraced the — 165 — 79 feet, they do not show such an outstanding title in their devisees and heirs as would defeat the plaintiff’s right of action. At the date of the deeds Richard Peters had only an equitable title to the land, and this was all the title that he could convey. He did not obtain the legal title until he received the patent in 1823, and, although he may have taken it in trust for Poyntell and Neilson, he was still the holder of the legal title, and might maintain an action of ejectment upon it against all persons except the equitable owners of the land. If anything has been settled by the repeated decisions of this court, it is, that the holder of the legal title to land may maintain ejectment for its recovery; and a wrongdoer or intruder cannot set up the title of the cestui que trust as a defence to the action; nor can he object to the title of the plaintiff founded on the conveyance of a legal estate by the trustee on the ground of its having been an abuse of the trust. It matters not to an intruder, or to one who shows no title, whether the legal title belongs absolutely to the holder thereof, or whether it is held in trust for another. He cannot set up an outstanding equity in a third person to foil the plaintiff in an ejectment brought by a trustee on the legal title: Hunt v. Crawford, 3 Penna Rep. 426; Cox v. Blanden, 1 Watts 534; McHenry v. McCall, 10 Id. 470; Heath v. Knap, 1 Barr 491; Huston v. Wickersham, 8 Watts 519; Lair v. Hunsicker, 4 Casey 124. In this case the defendant showed no title. He did not claim under the heirs or devisees of Poyntell or Neilson, and it is clear from the authorities that he could not set up their equitable title, if they had any, to defeat the plaintiff’s action. If Peters conveyed the land to Kerr in derogation of their rights as the equitable owners, it did not lie in his mouth to call for a fulfilment of the trust, or to object to a title legal on its face, upon the allegation that it was conveyed in violation of their rights, when they themselves do not object. The court, therefore, erred in not instructing the jury that the plaintiff had shown a good legal title to the land, and was entitled to recover, unless the defendant had shown a continuous and adverse possession of the land by himself and those under whom he claimed for a period of twenty-one years. Did the defendant then show that he, and those under whom he claimed, had held its continuous and adverse possession for so long a period ? If he did nót, it was the duty of the court to instruct the jury that he had no title under the statute: Nearhoff v. Addleman, 7 Casey 279; Olwine v. Holman, 11 Harris 284; Huffman and Foreman v. McCrea, 6 P. F. Smith 95. The defendant alleges that Henry Wester and his heirs held the continued and adverse possession of the lot for a period of more than twenty-one years. The evidence shows that Wester moved into a small frame house on the lot in 1810, and that he resided there until his death, in 1822; and that his family re — 166 — mained there until 1884 or 1835, when they moved away and rented the house to Mrs. Russell, who lived there until it was torn down in 1838. If Wester and his heirs had the continued and adverse possession of the lot during all this time, it would be sufficient to give them a title under the statute. But, as we have already seen, Richard Peters brought an action of ejectment against Henry Wester, in 1818, and recovered a verdict and judgment therein in 1825. This- recovery stopped the running of the statute, and even if the Westers held adverse possession of the lot thereafter until the house was torn down in 1838, they acquired no title under the Statute of Limitations. Nor was any title conveyed to the defendant by the delivery of the possession of the lot to him by the grandson of Henry Wester in 1846, and by his deed of the 28th of November, 1865, for the reason that he had then no title whatever to convey. Even if Mrs. Russell was his tenant, he had had no possession of the lot since 1838. He had therefore no possession to which the defendant’s could be tacked. If the continuity of the possession is broken for a single day before the twenty-one years have elapsed, as is said in Olwine v. Holman, the previous possession goes for nothing and the wrongdoer must commence de novo. But the defendant himself claims to have had the continuous and adverse possession of the lot for a period of twenty-one years prior to the institution of this action. The evidence shows that he built his house on the adjoining lot in 1846, and that he moved into it early in 1847. During the time he was building the house he used the lot in controversy for hauling and depositing upon it lumber and other materials used in its construction. He put up steps leading to the second story of his house which projected over the lot in controversey; and he used the lot in going in and out of his house, and for drying clothes. It is clear that if he had no other possession of the lot than his mere use of it for the purposes mentioned, it was not such a possession as would give him title to it under the statute, even if he had used it for the full period of twenty-one years. But if the jury believed the testimony of James and Martha Johnson and Margaret McEwan, then the defendant could not have had the adverse possession of the lot continuously from 1846; for the two former testified that they occupied it under James Kerr from 1839 till 1852, and the latter that she occupied it from 1855 to 1866. But, aside from this testimony, we think that the defendant did not show such a possession of the lot as would give him a title under the statute. The other assignments of error, which relate to the admission or rejection of evidence, may be disposed of in a few words. We think the court erred in excluding the record of the ejectment brought by Peters against McNamee. It embraced the premises in controversy, and, if admissible for no other purpose, it tended to throw — 167 — some light upon the construction of the deeds of Peters to Poyntell and Neilson, and to rebut the implication of an outstanding title in their heirs. It was a recovery on the title set up by the plaintiff here, and is primá facie evidence that Peters was put in possession of the lot for which the action was brought, and which included the premises in dispute. The declarations of Mrs. Dugan, if made at the time she was in the occupancy of the lot, were clearly admissible. The declarations of a tenant, made while in possession, are admissible as a part of the res gestee, and have always been received in this state as explanatory of his possession; and it is immaterial whether the tenant, whose declarations are offered in evidence, is living or dead. His declarations are admissible because they accompany the possession and explain its character, and not because they are the declarations of a deceased occupier whose testimony can no longer be obtained: 1 Greenl. Ev. § 2, 109; Sheaffer v. Eakman, 6 P. F. Smith 144. We do not discover any error in the admission of the deed of Foot to Wester, accompanied as it was with the offer to follow it up by proof of twenty-one years’ adverse possession by Wester and those claiming under him. If it had been proposed to follow it with evidence showing that Wester did not go into possession under it, but that he was in possession of the lot four years before its date, as appeared from the evidence subsequently given, the court would doubtless have rejected it, as it did not convey title, nor tend to explain the character of his possession; Nor do we see any error in the rejection of the offer to prove by Littleton that the Poyntell heirs, whom he represented, were entitled to a fourth of the lot conveyed to their ancestor by Richard Peters, and that they did not claim any more than the 43 feet allotted to them by the deed of partition. The offer was merely negative, and was objectionable for this reason, if for no. other. If the plaintiff intended to show an actual disclaimer of title to the lot in controversy, the fact should have been stated in the offer, to enable the court to determine its relevancy and bearing upon the issue. We have now considered all the questions raised by the assignments of error in this case, and for the reasons given, the judgment must be reversed and a new trial awarded. Judgment reversed, and a venire facias de novo awarded.