Mason v. Ammon

Opinion, Mr. Chief Justice Gobdon: None of the assignments of error in this case can be sustained except that which covers the answer to the defendant’s third point; which point and answer are as follows: “ That under the evidence in this case the plaintiffs cannot recover.” Answer, “ Affirmed.” Whether Ralph Ditty, and those claiming under him, had that kind of continuous, notorious and hostile possession of the premises in dispute as would give them title under the statute of limitations, was, under all the evidence, a question for the jury, and ought so to have been submitted. Originally John and Ralph Ditty were tenants in common of the lot in controversy, and the receipt of March 3, 1838, was not of itself sufficient, under the statute of frauds and perjuries, to divest Ralph’s interest; hence, prima facie, his subsequent possession would have to be regarded as a joint possession for himself and his brother. The receipt, however, taken in connection with the other parol evidence, does, undoubtedly, not only tend to rebut the prima facie presumption of Ralph’s occupancy as a tenant in common, but presents a strong case of adverse possession. Still, strong as the evidence is, it ought to have been submitted to the jury. As to the construction of the will: The learned president of the Common Pleas has so well disposed of that branch of the case, that we need only say, we entirely agree with him. The words “other lineal descendants,” so qualify the previous words “ child or children,” as to make them words of limitation, and not of purchase. Indeed, the whole case was so well tried, and the result reached so obviously just, that except to preserve intact a necessary and important legal rule, we would hesitate to send it back for re-trial. The judgment is reversed, and a new venire ordered.