Criswell v. Altemus

The opinion of the Court was delivered by Kennedy, J. The first matter assigned for error is the bill of exception to the opinion of the court below, admitting a certified copy of Joseph Gilpin’s will to be read in evidence to the jury. The objection to its being read was, that it did not come within (he provisions of the acts of congress making certified copies of matters placed on record in one state, in conformity to the laws thereof, admissible in evidence so as to entitle them to the same faith and credit in every other state that they have in the state where the record is, when authenticated in the manner thereby prescribed. The act of congress of the 26th of May 1790 provides for the authentication of the acts of the legislatures of the several states, and the records and judicial proceedings of the courts thereof. After which the supplement thereto of the 27th of March 1804 was passed, making all records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, admissible evidence in any other state, when attested by the keeper of the said records or books and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept, that the attestation is in due form and by the proper person. The certified copy of Joseph Gilpin’s will, whether the office of register of wills in Maryland appertains to the orphan’s court or not, would seem to be authenticated in such manner as to entitle it to be read in evidence in the court below. It is certified or attested by the register of wills of Cecil county, Maryland, under the seal of his office; to which there is subjoined the certificate of the chief judge, Enoch Cloud, of the county of Cecil, Maryland, under his hand, showing that the attestation of the register is in due form and by the proper officer, with the certificate, also, of the clerk of the said orphan’s court, under his hand and seal of office, that Enoch Cloud was, at the time of giving his certificate, the chief — 577 — judge of said court: and the said orphan’s court being a “county court,” or court of Cecil county, wherein the record of the will was' kept, and Enoch Cloud chief judge of it, he may very fairly, in the absence of any thing showing the contrary, be regarded as the “presiding justice” of the court of that county, according to the language of the act of 1804. From the form of the certificate of the chief judge here, however, I would infer that the office of register of wills, in Maryland, does not necessarily appertain to the orphan’s court; because, beside certifying that the register’s attestation is in due forra, he has superadded that it is also by the proper person, which latter clause seems to be required only where the office does not appertain to any court. But supposing it is not authenticated in the manner and form required by the acts of congress, or that it does not come within the provisions thereof, so as to entitle it to the same faith and credit that would be given to it in Maryland, still we think it was admissible as prima fade evidence at least, according to the principle of Baker v. Field, 2 Yeates 532, and Ralston v. Cummins, cited there. The second matter assigned for error is also a bill of exception to the opinion of the court, admitting a deed of conveyance appearing to have been made in the state of Maryland, dated the 30th of October 1833, by Henry H. Gilpin, John Gilpin and William H. Gil-pin to Mary Gilpin, transferring to her their interest in the land in dispute. The objection to its being read in evidence was, that it was not acknowledged nor proved, and one or the other certified to have been done before and by a proper officer, in the manner required by our acts of assembly, so as to render it admissible in evidence, without the execution thereof being first proved as directed by the rules of the common law. It is perfectly clear, that if this deed had been certified by one of the associate judges, under his hand, of any county of this state, to have been acknowledged before him by the grantors therein named, it would, without more, according to the express provisions of the act of the 13th of April 1791, have been entitled to be recorded, and consequently have become admissible in evidence without further proof of its execution. Then, by the first section of the act of the 23d of March 1819 it is enacted, among other things, that, all bargains and sales, deeds, conveyances and other instruments of writing concerning any lands or hereditaments lying within the state, made thereafter out of the state, and duly acknowledged by the party or parties executing the same, or proved by the oath or affirmation of one or more of the subscribing witnesses thereto, before any one of the judges of the courts of common pleas of any state or territory within the United States, and so certified under the hand of the said judge and seal of the court, shall be as valid to all intents and purposes, and shall have the like effect and be in like manner entitled to be recorded as if they had been made and acknowledged and certified in conformity to any law of the commonwealth. Here the ac — 578 — knowledgement of the deed in question, according to the certificate thereof, appears to have been made before a judge of the court of Cecil county, in the state of Maryland, which is a court of common pleas of that state. He has certified the fact of its being acknowledged by the parties executing the deed before him, under his hand and the seal of the said court. This brings it within, as it were, the very letter as well as the meaning of the act of 1819. The third and fourth bills of exception each present the same question as the last or second, and are therefore disposed of in the same way. The fifth bill of exception, which is the next error assigned, was taken to the opinion of the court below, admitting the testimony of ■--— Bryan, who was a member of the grand jury at December session of the court of quarter sessions of Indiana county 1814, in order to prove that John Criswell, one of the defendants below, was produced as a witness before the grand jury during that session of the court of quarter sessions, on a bill of indictment against a certain Fanny Kiskaden, and, inter alia, testified that he held the land in dispute under a lease from Mr Stanard. By other evidence given on the trial of the cause it appeared that Mr Stanard had a letter of attorney from Mary Gilpin, dated in February 1818, executed by her as the guardian of her children, then in their minority, from whom Altemus, one of the plaintiffs below, has, since they attained full age, derived by purchase his claim to the land; and that Criswell considered Mr Stanard the agent of the Gilpins, whom he regarded as the owners of the land before that; though Mr Stanard testified that in fact he was not so, yet it appeared to him that Criswell thought he was at, the time of the indictment, if not before. The testimony of Bryan, therefore, would seem to have been material, or at' least not irrelevant, as it tended to prove that Criswell did not, at the time, hold the possession of the land adversely to the Gilpins,. whose right to it he seemed to consider indisputable. It was said that no such lease was produced, which would have been better evidence of the fact; nor yet was any account given of it, showing that it was lost, destroyed or, for any other reason, could not be produced. In reply to this, however, it is sufficient to say, that it did not appear from what Criswell, in giving evidence, said, that it was in writing; for aught that was proved to have been said by him, it might have been a verbal lease. But even if it had been declared by Criswell to be in writing, I do not see that it would have imposed the production of it upon the plaintiffs below ; because whether he had ever taken such lease or not, his declaration that he had, was evidence against him without it, inasmuch as it went to show that he did not then hold the land adversely, but in subordination to the title of the Gil-pins. The evidence was therefore properly admitted. The sixth exception was to the admission of a certificate, duly authenticated, as it would seem, from the orphan’s court of Cecil county, in the state of Maryland, showing the appointment of Mary — 579 — H. Gilpin by that court on the 10th of October 1808, guardian of the children of John Gilpin, her late husband and herself, being then in their minority, and from whom Altemus derived his claim to the land after they arrived at the age of majority. We perceive no good objection to this evidence: on the contrary, we think it was admissible and pertinent, because it tended to prove that she, in giving to Mr Stanard a letter of attorney, as guardian of her children, authorizing him to look after the land in dispute, one half of which, at least, belonged to them, and to do whatever might be requisite in order to secure it for them, was doing nothing more than fulfilling a duty devolved upon her by virtue of the appointment, if not by the natural relation in which she stood to them, evidenced by the certificate. The seventh bill of exception is to the admission of the letter of attorney, before mentioned, from Mary Gilpin, as guardian of her children, to Mr Stanard, dated the 21st of February 1818, authorizing him to take possession of the land and to lease it. This letter of attorney being an instrument concerning lands lying within this state, and the execution thereof being certified by Ezekiel Chambers, chief judge of the second judicial district of the state of Maryland, composed of the counties of Cecil, Kent, Queen Anne and Talbot, under liis hand, to have been proved before him by Zebulon Rudolph, the subscribing witness thereto, and accompanied by the seal of the court of Cecil county, one of the counties of the said district, wherein the probate was made, rendered it clearly admissible in evidence, according to our acts of assembly, without further proof of its execution. It would seem to be admissible either under the act of the 24th of February 1770 or the act of the 23d of March 1819. The terms of either, or both, are sufficient to entitle it to be given in evidence as it was. Though numerically there are seven errors remaining beside those which have been remarked on, yet there seem to be but two questions, at most, material to the issue here presented by them. The first is, supposing that the jury, from the evidence, should have been of opinion that Criswell, the elder, one of the defendants below, had entered and settled upon the land in question adversely and without colour of title in 1805, after having commenced improving thereon previously; and had continued in the actual possession thereof claiming it as his own to the extent of the official survey, by extending his improvements every year, in clearing, fencing in and cultivating more and more of the land, as well as adding to the buildings thereon; and from the year 1808, if not before, had returned the whole of the tract or survey to the assessor as his own and paid the taxes assessed thereon, without any taxes having been assessed in the names of, or paid by, the real owners from those years down to the-commencement of this ejectment, ought not the jury to have found therefrom an ouster by Criswell of the plaintiffs below and those under whom they claim, not merely of the land actually cleared — 580 — and inclosed by Criswell for the space of twenty-one years before the commencement of the action, but of the whole of the survey? The second question is, was the evidence given on the trial of the cause, such as that the jury could clearly infer therefrom, that Criswell did not intend to hold the land adversely to the title of the plaintiffs below, but in subordinancy to it? As to the first, the court below, in thei.r charge delivered by the" president judge to the jury, appear to have answered it in the negative; in which we think they were wrong. The affirmative is plainly laid down by the late Chief Justice Tilghman in Royer v. Benlow, 10 Serg. & Rawle 306; again by Mr Justice Rogers in Read v. Goodyear, 17 Serg. & Rawle 351; then by Mr Justice Huston in Jones v. Porter, 3 Penn. Rep. 135; and lastly, by the present chief justice in M’Call v. Neely, 3 Watts 73; and in the preceding pages, he brings the principles of the common law in reference to disseisin, to bear upon and support it. Though I cannot recur to any case where the question has been raised directly and adjudicated by this court in the affirmative; nor am I certain that any such has occurred ; yet such has been the settled opinion in it for some time back, that where an intruder enters, without colour of title, into and settles with his family upon, an unseated tract of land belonging to another, who claims it under a warrant and survey, either with or without a patent from the commonwealth; and having settled upon it, claims it as his own by exercising acts of ownership over it from year to year, in putting up buildings upon it, clearing and fencing more or less of it and using the whole of it according to the custom of the country, that is, the clear land either as arable, meadow or pasture, and the woodland for obtaining from it timber as often as the settler shall have occasion for it to answer his purpose, also returning the whole of it to the assessors as his own and paying the taxes thereon when assessed for a period of twenty-one years, will be sufficient, under the operation of the statute of limitations, to protect him in the possession of the whole of the tract or survey including the woodland as well as the improved parts of it. in short it will give him a right or title to the whole of it, and were he to be dispossessed against his will might recover the possession upon it in an action of'ejectment, even against the former owner who had lost his right by the statute. Stokes v. Berry, 2 Salk. 421. Such possession and use of the land by the intruder cannot be, and certainly is not, according to the common understanding of mankind, considered less than an adverse actual possession of the whole tract, as also an actual ouster of the true owner to the same extent. Generally the woodland of- seated tracts is not fenced or inclosed in any way, but timber taken from it by the occupant of the cleared parts when he has occasion for it; and this, until the greater portion of the tract shall become clear land, is the only practical use that can be made of the woodland part of it; and being thus used by him, I think I may say that he is universally looked on as having the actual possession of it. This being — 581 — the case, it would seem to be an evasion of the statute to hold otherwise. The design of the statute was not only to give peace and quiet to the community, but likewise to protect men in the possession and enjoyment of lands which they had held and been improving, perhaps at great expense or the whole labour of the better part of the occupant’s lifetime, for the space of twenty-one years. For the purpose of promoting these objects the statute ought t.o be favourably construed. Long experience has proved most satisfactorily the policy of it. It is the interest of the state that the lands within it should be improved and rendered as productive as possible; but this cannot be expected unless the possessors of it shall, after a reasonable length of time, be made perfectly secure in their possession. The whole state being in a progressive state of improvement, in which every one ought to join and to exert himself according to his means in order to increase the power and resources of the stale, the statute of limitations, it will be found, will be the only safeguard which many will have for the money and labour expended and used by them in the laudable work. The security of all men depends upon it, say the court in Green v. Rivett, 2 Salk. 422, and therefore it ought to be favoured. But notwithstanding the court erred in their direction to the jury on this point, still, if the second point was rightly answered by them, we think that the judgment ought not to be reversed for the error in the first; because the verdict of the jury being in favour of the plaintiffs below for the whole of the land, we must necessarily suppose or conclude that they founded their verdict entirely upon the instruction which they received from the court answering the second question in the affirmative. Then as to the second question: were the court correct in their instruction to the jury by way of answer to it. In order to prevent the possession taken of land by a person, without either title or colour of it, from being adverse, it is not requisite that he should enter under any previous agreement made with the owner or, as I conceive, that he should even know personally who the owner is. It is sufficient to prevent its being considered adverse, that the party taking possession intends to occupy the land subject to the will of the owner whoever he may be: and if this be made to appear clearly by the evidence, the statute of limitations will form no bar to the owner’s recovering possession whenever he shall think proper to demand it. The plaintiffs below claimed under a title which was shown to have been vested in a certain Joseph Gilpin, ns early as 1775, by a patent from the commonwealth ; who, it would seem, continued to be the owner of the land till his death. Previously thereto he made his will, devising it in fee to his daughter Rachel, who continued thereafter to be the owner of it till her death. Whether she was living or not at the time Criswell first settled upon it does not appear distinctly from the evidence. But about that time she died unmarried, intestate and without issue, leaving however five brothers and — 582 — sisters, her heirs at law, to whom it descended. The title to the whole of the land in dispute may be said to have continued in the Gilpin family until Altemus, one of the plaintiffs below, became a purchaser of part of their interest or right in it in the year 1833. Criswell seems to have been aware at the time that he first entered upon the land, or at least not very long afterwards, that the title to it was in a person or persons of the name of Gilpin, and that, he, she, or they were the true owners thereof, though personally they were unknown to him. From the evidence it would appear that he considered the Gilpin title irresistibly good, for he caused a suit to be brought in the name of Thomas Gilpin in 1814, to remove a Fanny Kiskaden, who had come and settled upon the land previously to that. Not being personally acquainted however with the Gilpin family connected with the title to the land, he had the suit brought in the name of Thomas, which was a mistake ; but still he effected his purpose in the suit, notwithstanding this mistake, of getting possession of the whole of the land. It was also about this time that he testified before the grand jury of the county that he held the land under a lease from Mr Stanard, whom he seemed to think, according to the evidence of Mr Stanard, was the agent of the Gilpins having the title to it. And as it does not appear that any person of the name of Gilpin, other than those from whom the plaintiffs below derive their title to the land, ever even pretended a claim to it, the jury might fairly infer that the plaintiff’s title was the one to which Criswell had reference as often as he spoke of the Gilpin title, and declared that he held and would keep the possession of the land in subjection to it. But according to the testimony of Mr Stanard the possession of Criswell in 1818 or 1819 became, by his own agreement, united directly with the titleof the plaintiffs below, some four or five years at least before the statute of limitations could have run, supposing the previous possession of Criswell to have been adverse from its commencement in 1803 down to that time. Mr Stanard’s testimony is, that within a year after be received the letter of-attorney from Mary Gilpin, guardian of the children of her late husband, John Gilpin, which is dated the 21st of February 1818, “he had several conversations with Criswell, in which he told him the tract of land belonged to the minor children of Mr Gilpin, of Maryland. He told him (Criswell) to stay on it, and take good care of it, and commit no trespass, and pay the taxes; he (Criswell) said he would do so.” Mr Stanard also testifies that he told Criswell that he had power to act on their (the minor children’s) behalf. It would also appear from Mr Stanard’s testimony that this took place at the house of Criswell on the land, when he (Mr Stanard) happened to be passing that way to the town of Armagh. Mr Stanard further testifies that when he called at the house of Criswell, in company with Dr John Gilpin, one of the children and heirs of John Gilpin deceased, for whom Mary Gilpin had been guardian, which as Dr Gilpin testifies was in the fall of 1828, he reminded — 583 — Criswell of the conversation he had had with him when the suit (before alluded to) was brought against Fanny Kiskaden by Thomas Gilpin in 1814, by observing to Criswell “that when he (Mr Stanard) brought the suit in the name of Thomas Gilpin, he (Criswell) had told him (Stanard) to bring it, and that he (Criswell) would take care of the land for the owners; and that he (Criswell) told him (Stanard), some time after that had been brought, that he (Criswell) had got possession of the whole land, and would take care of it for the owners and pay the taxes.” To the truth of this it would seem Criswell gave his silent assent. Mr Stanard also testifies that he thinks Mr Criswell was the first person from whom he heard that the land belonged to the Gilpins. Now, there being nothing shown on the trial of the cause tending to prove that Mr Stanard was mistaken in his testimony, or which went to impugn it in the least, the jury could not avoid coming to the conclusion that Criswell had agreed t.o hold possession of the whole of the land in subordination to the title of the Gilpins. If the evidence is believed, it is clear that he agreed to this without any qualification or condition whatever. Then his possession of the land could not be adverse, and without this the statute could not operate or run in his favour. To hold otherwise would be permitting him to practise a. gross and palpable fraud upon the Gilpins or owners of the land, by inducing them to believe, by his promise, that he would surrender the actual possession of the land to them at any time when required ; so that under the confidence thus induced he might be permitted to remain in possession until after the twenty-one years had run, and then set up the statute as a bar to their claim. Whereas if he had refused to hold it under them they could, and doubtless would, have brought their action of ejectment, and turned him out of it. But it is objected that Mr Stanard, at most, had only an authority to act for the children of John Gilpin, who were the owners of but one half of the land ; and that the agreement of Criswell must be limited according to the right of those on whose behalf Mr Stanard acted ; and the subordinate possession of Criswell therefore restricted to one half of the land; leaving his possession as to- the other half adverse, and consequently protected by the statute of limitations. In answer to this, however, it must be observed that the acts of Mr Stanard are to be regarded as the acts of those for whom he acted, and as if done by themselves; and that his going upon the land to Criswell, and making known to him the right and claim of the children of John Gilpin to it, upon which Criswell agreed to hold the possession under and for them, was equivalent to their entering and taking the actual possession of the whole of the land themselves. See Wells v. Prince, 4 Mass. Rep. 64. If they had done so, being the owners of an undivided moiety of it, and tenants in common, in 1818 and many years afterwards, with Joseph G. Partridge, their cousin, who was the owner of the other moiety, they would be considered as having entered and taken possession for — 584 — him as well as for themselves, especially as there does not appear to have been any dispute or disagreement between them at any time in regard to their respective rights and interests in the land. It seems to be well settled that the possession and seisin of one tenant in common is the possession and seisin of another, because such possession is not adverse to the right of his companion, but in support of their common title. 1 Inst. 189, a., 199, b.; Cro. Eliz. 641; 2 Cruise’s Dig., tit. 20, Tenancy in Common, sec. 14; Sterling v. Penlington, 14 Vin. Abr. 511; Smales v. Dale, Hob. 120. In this latter case it is reported by lord Hobart to have been decided that the entry of one tenant in common may be in three ways: either in the name of herself or her fellow; or generally, which shall always be taken according to right, as being under construction of law, and therefore lawful; or lastly, entry claiming all expressly, which cannot dispossess her fellow, for her possession is over all lawful, as well before as after such claim, so that there is no possession altered by such claim. 1 Inst. 243, b., note 1, 373, b. In like manner the entry of one joint tenant, co-parcener or tenant in common will be sufficient to avoid the effect of a fine as to the other joint tenant, co-parcener or tenant in common. 5 Cruise’s Dig., tit. 35, Fine, ch. 14, sec. 52. The agreement, therefore, made by Mr Stanard, on behalf of the children and heirs of John Gilpin deceased, with John Criswell, is to be considered as operating in favour of Joseph G. Partridge, the other tenant in common of the land, according to his right, as well as the children of John. Gilpin according to their respective rights, there never having been any intention manifested by them at any time that it should be otherwise. We therefore think the court below instructed the jury correctly as to the second question ; and that the jury, from the evidence and the instruction of the court, were right in finding a verdict in favour of the plaintiffs below generally for the whole of the land. Judgment affirmed.