Lodge v. Patterson

The opinion of the Court was delivered by Sergeant, J. In this ejectment the defendants, Lodge and Lodge, entered on the record the plea of Not guilty; and moreover, that they took defence for four undivided seventh parts of two hundred acres, being the shares of Andrew Patterson and three others, heirs of John Patterson deceased, who owned and died seised thereof. They offered Nathan Patterson, a son of Andrew Patterson, as a witness in their behalf. The defendants having set up the title of John Patterson’s heirs by way of defence against the plaintiff’s claim, the question trying in this ejectment was, whether the right of the plaintiffs, who are the heirs of Nathan Patterson, or of the heirs of John Patterson, was the better. The witness, therefore, came forward to maintain his own title, and to keep those in possession who recognized it. If the defendants succeeded, the witness’s title was found by the verdict, and he could call on the defendants to attorn to him, or commence an action to recover possession. In such action the proceeding here would be evidence for the purpose of proving, that the defendants asserted the witness’s title to be the best. The witness seems, therefore, to be directly interested in obtaining a verdict in favour of the defendants, by whom he is called, and was on that account properly rejected. The other errors assigned, are in the charge of the court respecting the statute of limitations. There are certain principles on this subject which have been well established by authority, and are consonant to justice and reason. The possession of a party, to be available as a bar from lapse of time under the statute, must be adverse. The possession of one joint tenant or tenant in common, is prima facie the possession of his companion also: and it therefore follows that [77] the possession of the one can never be considered as adverse to the title of the other, Unless it be attended with circumstances demonstrative of an adverse intent; such as demand by the co-tenant of his moiety, and refusal to pay, saying he claims the whole: or, when one joint tenant bade the other go out of the house, and he went out accordingly. Adams on Eject. 56. On the same principle it was decided, (hat although the entry of one is, generally speaking, the entry of both, yet if he enter claiming the whole to himself, it will be adverse. Ibid,.; 14 Vin. Ab. 512. The circumstances in the present case, evincing an actual ouster, were exceedingly strong. The plaintiff’s putting up the two hundred acres for sale and purchasing them, was properly stated by the court below to be a circumstance entitled to weight: it was a claim of the whole to himself in his own right as purchaser, and of course hostile to any right which he or the other relatives possessed as heirs of his brother. This claim was persisted in by entering on the land, and leasing it as his own exclusively ; by having a survey made in his own name; by taking the whole profits, and holding more than twenty-one years by a continued possession and enjoyment. It is urged that the purchase by N. Patterson is not to be deemed a circumstance of weight, because it does not appear that the other heirs had notice of it. That, however, is not necessary to be shown as an ingredient to constitute adverse possession. The character of adverse possession is given, not by proving notice to persons interested, but by the nature of the acts done by the party. There must be a hostile intent., and that intent must be manifested by outward acts of an unequivocal kind. To constitute a disseisin, it was never held to be requisite that notice should be sent to the disseisee, or that it must be proved he had knowledge of the entry and ouster committed on his land. The open act of entry on the land, with the declared intent to disseise, constitute the disseisin. No act unexplained could be a stronger declaration of the intent of the party than his purchasing the whole right of his deceased brother in the land: and his possession cannot be construed to have been in the character of co-tenant with his brother’s heirs, when he had purchased all their right, and claimed to hold it. For these reasons we think there is no error in the charge of the court. Judgment affirmed.