Kille v. Ege

[31] Judgment was entered in the Supreme Court, May 24th 1875, Per, Curiam. This case turns upon the question, whether the tract of land in controversy, surveyed in the name of William Cox, was, at the death of Michael Ege, a part of the forge and furnace éstate called Mount Holly Iron-Works, composed of several adjoining and contiguous surveys or tracts of land, situate in the South Middleton and Dickinson townships. This again hinges upon the question, whether the William Cox tract was any part of the land described in the proceedings for the partition of the estate of Michael Ege, deceased. If it be clearly determined that the William Cox tract was no part of the Mount Holly Forge and Furnace Estate, set apart in the proceedings to Ege, the second son of Michael Ege, in the year of 1816, it follows as clearly that the deed of June 2d 1815, from Michael Ege to William Miller, as trustee of Elizabeth Ege, for the William Cox tract with others, must have been delivered. The execution of this deed is clearly established, and if the William Cox tract was not included in the petition for partition filed November 11th 1815, and subsequent proceedings, it leaves no doubt that the legal presumption of delivery, derived from the acknowledgment by Michael Ege, the possession of the deed by Mrs. Elizabeth Ege’s husband, and recording of it, is true in fact. Michael Ege conveyed on the 20th of June 1815, and died on the 31st day August following, and the proceedings to divide his estate were commenced on November 11th succeeding. The estate was one of great value, the heirs were men and women of mature age, and the proceedings conducted and participated in by the foremost men of that part of the country. The proceedings themselves are minute and particular. The Mount Holly estate is twice described with the utmost precision, first in the petition, and next in the inquisition, as consisting of “ twelve tracts,” and these tracts are designated by name and number of acres. The warrants are all stated severally and by name; and the William Cox warrant and survey are not among them. Thé number of tracts would be thirteen if it had been included, instead of twelve, as stated, and therein particularized. It is very clear, then, that the Mount Holly estate, as accepted by and assigned to George Ege, did not embrace the Cox tract. It is impossible to suppose that these grown men and women, and their .eminent friends and advisers, did not consider and describe well the Mount Holly estate, or that they committed an error in leaving out of so important a proceeding a large portion of the estate of Michael Ege, deceased, for on this point we have to consider, not only the William Cox tract, but the other six tracts embraced in the deed of June 2d 1815. Then, in connection with this, we have the fact of the making of the three deeds of the 3d of June 1815, by Michael Ege to his three sons, Peter, George and Michael; Peter, the petitioner, reciting the advancement of Michael in lands in the lifetime of his father; coinciding with the undisputed fact, [32] that Peter and George refused their deeds, while Michael accepted his. Now, when we consider that the deed to Miller, as trustee of Elizabeth, was made the day before, for seven tracts of land, it is impossible to doubt that the family all knew well of this deed, and, consequently, that none of these seven tracts were embraced in the partition. The deed of June 2d 1815 being thus established beyond all doubt, the assignments of error to the rejection of evidence, to show that in the lifetime of Michael Ege, Sr., the William Cox tract had been at an early day brought into the Mount Holly estate, are immaterial. For the moment that he, as the owner of the whole estate, separated it from the Mount Holly Foi’ge and Furnace property, and his heirs following his act, left it out of the Mount Holly estate in the partition, it no longer constituted a part of that property: George took no title to it by his acceptance of the.purpart containing the Mount Holly estate, and those claiming his title under that proceeding stand in no better relation. This view of the case disposes substantially of all the assignments of error, for all bear on the question of the execution and delivery of the deed of June 2d 1815 ; and its establishment strips the defendants of all pretence of title. The only assignment of error bearing on this question having seeming weight, is the seventh, and this intrinsically has but little, for the acts of George Ege, and 'of adverse claimants of some of the tracts contained in the deed of June 2d 1815, can have but little weight in repelling the clear proof in law and fact of the execution and delivery of that deed. The offer affords scarcely more than a scintilla of evidence; and there is a decisive objection to the consideration of this assignment, consisting in the fact that the papers set forth in it' have not been copied and presented for our consideration by the plaintiff in error. A party alleging error must prove it. He must therefore produce the documents by copies to show us what their bearing is. Now, not one of the papers referred to in the seventh assignment is printed and laid before us. The only knowledge we have of them is by the defendant in error, and these, as read, tend to show, that the court committed no error in rejecting the whole offer. This assignment of error out of the way, and nothing is left about which there can be any doubt. Upon the evidence, the question of the Statute of Limitations is out of the case. In the lifetime and during the ownership of the Mount Holly estate by George Ege, the husband of Elizabeth, the statute did not run, even if the evidence was satisfactory of an actual possession of the whole tract by George Ege. His relation to her forbade the existence of adverse possession. After the estate passed out of his hands by the sheriff’s sale, the evidence shows no continuous actual possession, the premises often being vacant, and the entries at intervals, and but for temporary occupation. [33] Upon the whole case, we are of'opinion no error was committed by the learned judge. Judgment affirmed.