Cadwalader v. App

Mr. Justice Mercur delivered the opinion of the court, This was an action of ejectment. It was for a lot which Bichard Penn and Mary his wife demised to one Wormley in 1784, for a term of ten thousand years, reserving a yearly rent of thirteen dollars and thirty-three cents, payable in Spanish milled dollars. The payment thereof was secured by a right of distress; and a right of re-entry was reserved, in case no sufficient distress should be found on the premises. Wormley continued in possession, and resided on the premises until his death in 1829. He left no known heirs. The plaintiff claims under deed of October 19th 1838, from Bichard Penn. He was the son and devisee of Mary Penn, who owned the land when demised to Wormley. George App, under whom all the defendants claim, occupied the lot adjoining Wormley’s. Probably during the latter part of Wormley’s life, and with his permission, App occupied the back part of the Wormley lot, for depositing pump logs thereon, and soon after his death took possession of the whole lot. Prior to Wormley’s death, the plaintiff acted as agent for Penn, and so continued until his purchase in 1838. The uncontradicted testimony is, that in July 1839, the plaintiff made a re-entry with an unequivocal and declared intention to resume the actual possession; that he then and there gave the notices and did all the acts necessary to repossess the premises for the non-payment of rent, if there was not sufficient distress on the premises to pay the rent in arrear. The sufficiency of that distress was questioned on the trial. It appears, however, by the testimony of the plaintiff, that this re-entry was made in pursuance of an arrangement with App, and for the purpose of making title to him; .that he had purposely withdrawn everything from the lot; he had paid no rent prior to 1838; that the plaintiff was practically in possession, and App was there to take care of the property for him. Some three months thereafter, App entered into an agreement [210] in writing with the plaintiff, for the lot, in these words: “ I, George App, do hereby agree to take the lot on Frankford road, twenty feet; front, and one hundred feet deep, adjoining my house on the south, on a ground-rent of three dollars per foot, equal to sixty dollars per annum, payable half-yearly in all cases, from the first day of November 1839. Philadelphia, 'October 31st 1839.” It was signed by George App and by George Cadwalader, and by a subscribing witness. The legal effect of this instrument is raised by the seventh assignment of error. It has been held that the Statute of Frauds was passed for the protection of landowners. It was intended to guard them against prejudice in the proof of parol contracts. Hence the requirements of the statute are answered by a memorandum in writing signed by the party to be charged therewith. If, therefore, it be signed by the vendor alone and delivered to the vendee, it is all the statute requires: Lowry v. Mehaffy, 10 Watts 387 ; McFarson’s Appeal, 1 Jones 503; Tripp et al. v. Bishop, 6 P. F. Smith 424; Johnston v. Cowan, 9 Id. 275. This writing was signed by both parties. Nor is it necessary that the writing be under seal: Colt v. Selden, 5 Watts 525; McFarson’s Appeal, supra; Tripp v. Bishop, supra; Johnston v. Cowan, supra. Nor is any particular form of words essential to its validity for the sale of lands : Colt v. Selden; McFarson’s Appeal; Ross et al. v. Baker, 22 P. F. Smith 186. This agreement fulfilled all the requirements of the statute. It is in writing and signed by the parties. The terms of the contract, the land to be conveyed, and the price to be paid, are all. stated. The learned judge, therefore, erred in charging that this written agreement “ amounted to a parol contract for the sale and purchase of the land.” The second and third assignments involve the sufficiency of the evidence to give title to the defendants under the Statute of Limitations. The answer depends on the effect to be given to the testimony of Foley. He was clerk to the plaintiff -from 1845 to 1861. On the 4th of September 1850, he collected the last payment made by App, on his lease of October 31st 1839. That portion of Foley’s testimony which does not clearly relate to events too late to affect the question, is in these words: “At the 'last payment App requested that the plaintiff would furnish him with a deed for the lot; he said he wanted it made to his son instead of himself. After that, he called and said his son was going to build, and he wanted his deed. Afterwards, Samuel App told me he intended to claim the property, because he did not believe the plaintiff had any title. This was after the last payment of ground-rent by his father. He asked if General Cadwalader was prepared [211] to give the deed. I said £ No.’ He then said, I want you to understand that my father will pay no more rent.” Thus, the time when Samuel App declared his father would pay no more rent' is very vague and uncertain. The reason why, is not given. It is more reasonable to presume the remark was made to expedite the execution of the deed by the plaintiff than to indicate an intention to hold adversely to him. Samuel did not allege that he spoke by any authority from his father, or with his knowledge. He had no deed from his father until May 6th 1851. George App indicated no hostile claim or adverse right when he made the payment of. the 4th September 1850. On the contrary, both by his verbal request then made, as well as by his letter of the same date, requesting the deed to be made to his son Samuel, he most unmistakably negatived the idea of his claiming title paramount to the plaintiff’s. After that, when he said his son wanted to build, the same recognition of title in the plaintiff is clearly manifested. There is no evidence that, prior to the 24th April 1851, George App gave any notice indicating a denial of the plaintiff’s title. That notice of the 24th April clearly assumes, if it does not declare, that negotiations in regard to executing the deed had been continued and open until that date. There is no allegation that he, prior to that time, either personally or through his son, discontinued those negotiations. Still further, assuming Samuel to have spoken by authority from his father, it was a mere declaration accompanied by no act. It was not made when a payment was demanded. When one has entered expressly or legally, in subservience to the title of the owner, the statute does not begin to run in favor of such occupant until the privity existing between him and the owner is severed by some unequivocal act. Until such act his possession does not become adverse. Mere declaration of an intention is insufficient. This rule was applied to co-tenants in Phillips v. Gregg, 10 Watts 158; Hart v. Gregg, Id. 185; Watson v. Gregg, Id. 289. But it is held that the rule is not restricted to co-tenants. It applies generally, whenever the title was originally taken, and held in subserviency to the title of the real owner : Zeller’s Lessee v. Eckert, 4 Howard 289; Cook v. Nicholas, 2 W. & S. 27; Hall v. Mathias, 4 W. & S. 331; Long v. Mast, 1 Jones 189; Bannon et al. v. Brandon, 10 Casey 267. Tested by the authorities we think the declarations of Samuel App were insufficient to submit to the jury as evidence of adverse possession by George App. It was not in his power, acting through an agent, to make the Statute of Limitations begin to run in his favor, while he at the same time, by his own personal conduct, was continually recognising the plaintiff’s title. His possession was not adverse. To hold otherwise would be to sanction a fraud on his landlord. His written notice of 24th April 1851 contains a [212] disclaimer of any adverse claim prior to that date. He therein says, “1 now. notify you that I no longer recognise your title to the same.” Up to that time he had recognised it; but thenceforth he would not. As George App had unquestionably held under the plaintiff, and there is no sufficient evidence that he held adversely prior to his written notice, these assignments are sustained. The fourth assignment is made by uniting disconnected parts of the charge. Considered in connection with the context, we see no error in the idea conveyed, nor do we think the language used in any wise injured the plaintiff. There are no substantial errors in the remaining assignments. Judgment reversed and a venire facias de novo awarded.