M'Cullough v. M'Call

The opinion of the court was delivered by Kennedy, J. The exception to the answer given by the court below to the fifth proposition of the defendant there, which seems to have any foundation to rest on, is the implication contained in [373] it, that there was no evidence given on the trial tending to prove that the division line, run and marked on the ground, was made by the consent of both parties; and if there was not, then the statute of limitations would not run against the plaintiff below until he hada knowledge of the defendant’s claiming the land in dispute adversely. It is not denied that this line is the same that is called for and mentioned as such in the deed of conveyance from M’Call to M’Cullough. If it be the same, then it is clearly evidenced thereby, that it was agreed on and established as such by the consent of both parties. That deed must be regarded as of the same efffcacyagainst Mr M’Call, as if he had executed it in person; and all that was known and assented to by Mr Collins, his attorney, at the time, must be considered as if known and assented to by Mr M’Call himself. But if the line was first run and agreed to between Day and M’Cullough as a division line, the other evidence in the cause, notwithstanding the evidence of Mr Day to the contrary, declaring that he never was the agent of Mr M’Call, goes to prove quite satisfactorily, if not conclusively, that Mr Day acted as such, and that Mr M’Call has recognized his acts, as if he were his agent, and as if they were binding upon himself as such. For instance, the note in writing shows conclusively, that Mr Day held himself out to the world as the agent of Mr M’Call, and that he professed to act as such. And in support and confirmation of this, Mr M’Call admits the right of M’Cullough to the 50 acres sold to him by Day. Then if Mr Day had authority to sell the 50 acres, most clearly he had, as incident thereto, the right to separate the sale, by making a division line for that purpose, from the residue of the survey belonging to Mr M’Call. But this could not be effected without laying off at the same time, if not. previously done, the 150 acres to which M’Cullough was also entitled for rqaking the settlement. But mpre,. Mr M’Call afterwards, by his attorney, Mr Collins, in 1S08, undertook to make a deed of conveyance to M’Cullough for the 150'acres, and the 50 acres, as one parcel, making in all 300 acres, which, according to the agreements made in this behalf, were to be so conveyed to M’Cullougtfin fee, that he might hold the same' in severalty by metes and bounds. This act also, in law, must be regarded as the act of Mr M’Call himself, as the authority fi’om him to Mr Collins is not denied; he, therefore, must be considered as having a knowledge of the line of division mentioned therein; which is, in short, thereby acknowledged by him to exist. So that from the time the line of division became thus approved and sanctioned by both parties, the possession of M’Cullough, even according to the notion entertained by the court below, became exclusive and limited by it; and as M’Cullough thereafter claimed and occupied all the land thrown off on the south end of the survey by this line, as his own-absolutely, his possession of the same also.became clearly adverse to the rights of Mr M’Call; and if the latter suffered twenty-one years, as it seems he did, to run around without making his claim in proper form, the [374] statute of limitations would be a bar to it. Resides this, however, it must also be observed, that it was the bounden duty of Mr M’Call, as soon as he procured his patent for the land, which was obtained by him upon the strength of the settlement and improvement made and completed thereon by M’Cnllough, to have made a deed of conveyance to M’Cullough for the 200 acres, thereby setting it apart from the residue of his survey, by metes and bounds according to the election of M’Cullough on the south end of the survey; and if M’Cullough claimed too much, by his division, it was then the business of M’Call to see to it, and to have it corrected. Cox v. Blanden, 1 Watts 533; Kielw. 84; 2 Coke. 36; 3 Bac. Abr. 392, tit. Grant (H). See also Palmer’s case, 5 Coke 24; Cro. Eliz. 819. It was, therefore, not the business of M’Cullough to be at the trouble and expense of looking after and calling upon M’Call, who resided at the distance of upwards of 300 miles, to get the land divided, and to obtain his deed of conveyance for it. We, therefore, think, that the court below erred in their answer to the fifth proposition of the defendant. We also think there is error in the answer given by the court to the defendant’s sixth proposition, in saying “his (M’Cullough’s) possession was the possession' of Archibald M’Call, and until M’Call had a knowledge of the unfair conduct of John M’Cullough the statute of limitations would not begin to run.” Now it is clear, that M’Cullough did not enter into the possession of the land as a tenant under M’Call, but under a contract for the purchase of 150 acres of the survey in severalty. A purchaser upon being let into possession on a treaty for purchase, does not become the tenant'to the latter. Hearne v. Tomlin, Peake’s Ca., 192; Kintland v. Pounsett, 2 Taunt. 45; 1 Sug. on Vend. 249. The settlement and improvement made by M’Cullough, were not made for the use of M’Call, that he should thereafter enjoy or occupy the same as the owner thereof; but for M’Cullough himself, who was to be the absolute owner thereof, together Avith the 150 acres, of the survey, upon which the same were to be made. The only advantage which M’Call could claim to derive therefrom, was the right which it gave him, Avhen completed, to demand from the commonwealth a title, in trust, to the 150 acres for the use of M’Cullough, and to the residue of the survey, if not sold or disposed of by him, for his oavii use. But as long as M’Cullough continued to fulfil his contract by making the settlement and improvement, the possession was exclusively his, and having completed the same, it must ever continue to be his until he shall part with it; so that M’Call could never have any, the least, claim whatever to it. To the extent then of 150 acres, under the contract for the settlement, the possession belonged exclusively and rightfully to M’Cullough; and if he took possession of the land be}mnd that, he was a trespasser, and might have been treated by M’Call as such; and certainly it cannot be denied, that the statute of limitations rvill run in favour [375] of an intruder, who is permitted by the owner .to hold the possession for twenty-one years, and the owner is bound at hisperil to know it. As to the seventh proposition; the answer of the court to this proposition, so far as regards the possession of M’CulIough as a settler, has already been shown to be erroneous, in what has been said of the answer of the court to the sixth proposition, and therefore need not be repeated. And so far as the answer to the seventh proposition, applies to the case of tenants-in-common and their relation to each other, it is wholly unnecessary to notice it: for it has no application whatever to the case of the settler in this instance; nor in any other, where the settler is to have a certain number of acres of the survey in severalty, including his settlement and all the improvements made thereon by him.. His possession of the land can never be regarded as the possession of the owner of the warrant, as the possession taken eo nomine by one tenant in common, may be considered in law as the possession of his co-tenant. The possession of the settler, in the case before us, was exclusively his own, and he might have maintained trespass even against Mr M’Call himself, as against any other, if he had entered within the 150 acres on the south end of the survey, for the purpose of taking a joint-possession with him. As to the remaining matters, which have been assigned for error, it is believed that whatever there may be in them that is erroneous, it will be readily perceived and corrected by the application of what has been said and laid down in noticing the previous errors. Judgment reversed, and a venire de novo awarded.