Graffius v. Tottenham

The opinion of the Court was delivered by Gibson, C. J. Though there is no inherent privity between trespassers, it was held, in Overfield v. Christie, (7 Serg. & Rawle 177) that a tortious possession may, by our law, be transferred by deed or will so as to complete the bar of the Statute of Limitations, by the additional adverse possession of the transferree; and such possession is transmissible by descent, even according to the English law. Did James Huff then succeed, by his entry, to the whole of his father’s adverse possession, or only to an undivided share of it? He came in at the death of his mother, who had kept the family together on the place for less than a year after his father’s death. It is not denied that, as a tenant in common with his brothers and sisters, he succeeded to so much of his father’s possession as appertained to his own share, but it is denied that he succeeded to any more of it; and as it was not shown that the brothers and sisters had entered for themselves, it is argued that there was no actual possession of their shares in them to displace the constructive possession of the lawful owners, and that the statute consequently ceased to run in favour of their undivided interests; but that, in any event, as James did not succeed to them by deed or will, he could not, on the principle of want of privity among trespassers, tack his adverse possession to that of his father for more than his own share. His entry merely would certainly not be an abatement of the shares of his brothers and sisters. That principle is distinctly asserted in Sharrington v. Stratton, (Plowd. 306) where it is stated that, “if the father dies seised of the land, and the youngest son enters, the oldest son shall not have an assize of mort d’ancestor, or a writ of right, or any other action against him; for thé law presumes that he who is so near to him in blood is also as near to him in love, and therefore it cannot be supposed that he entered as an enemy, but as a friend, to preserve the inheritance in his absence.” Without more, then, the law wrould presume that James had entered, not to abate the shares of his brothers and [493] sisters, but to preserve them for their use; and his entry being consequently theirs, there would be privity enough between them to unite every part of his possession to that of their common ancestor. It would presume that he was in possession without wrong to them; and as the possession of one joint tenant was deemed, in Ford v. Grey, (Salk. 285) to be the possession of the other, so far as to prevent the Statute of Limitations from running against either—a consequence attributed, in Carothers v. Dunning, (3 Serg. & Rawle 381) to such a possession between tenants in common—the possession of James would be the possession of all the rest, to give the statute entire effect in their favour. Thus would stand his entry, unaffected by his subsequent conveyance to the defendants, which, however, serves not to weaken the case. The English law, in regard to parceners, is laid down by Lord Coke, (1 Inst. 374 a) where he says that when “the one sister entereth into the whole, the possession being void (vacant), and maketh a feoffment in fee, the act subsequent doth so explain the entry precedent into the whole, that now, by construction of law, she was only seised of the whole; and this feoffment can be no disseisin, nor any abatement, because they both made but one heir to the ancestor, and one freehold and inheritance descended to them.” Now, though the children of an intestate decedent have not, with us, an entirety of interest as in joint tenancy, or even a unity of interest as in coparcenary, but, by the words of our statute, a severalty of interest as in tenancy in common, yet we must respect our own usages which attach consequences to particular acts in the completion of an inchoate title, which would not be attached to them in the. parent country. In Pennsylvania, the name in a warrant has been considered a very slight indication of the ownership of it. It was a common practice to use the name of a stranger without consulting him; and almost any act of ownership, in the prosecution of the title, was considered prima facie evidence of a trust for him who performed it. “We know,” said Mr Justice Yeates, in Cox v. Grant, (1 Yeates 166) “that in general the name in the location was merely nominal, and used as a kind of scaffolding for the building up of a formal and regular title;” and this practice received peculiar indulgence between those who stood in the relation of parent and child. “In the case of a father making an application in the name of his children,” said Mr Justice Smith, in Fogler v. Evig, (2 Yeates 120) “it shall be presumed to be for the use of the father.” Why shall it not equally be presumed to be for the use of the father’s heirs, when made on the foundation of his improvement in the name of one of his sons ? Nothing is more usual, in such a case, than for the oldest, or some other son to enter and consummate the improvement for the use of the family, by a warrant and survey in his own name; and to convey the legal title to a purchaser, when the land is turned into money for purposes [494] of partition. To imply a disseisin, or an abatement from the conveyance of such a warrantee, would be to imply a tort, against the truth of the case, to the persons intended to be benefited by it; and such an implication would, in this instance, do them a substantial injury by means of a constructive wrong. It may be said, that if the warrant was taken out for the use of the family, it might have been proved. These arrangements, however, usually take place upon an indistinct understanding, and without any specific agreement; so that it is difficult to prove them by the testimony of the family, even when they are competent witnesses on the score of interest. It would be dangerous, therefore, to imply an ouster of the rest of the family frdm a conveyance by one of the sons in his own name; and it is much more safe to apply the principle of Fogler v. Evig to such a transaction, wherever the presumption is not rebutted. I have treated the case as if James Huff had taken out the warrant in his own name before the conveyance; but it is certainly not the weaker because it was taken out in the name of his vendee. Another objection has been urged, which would preclude defence on the Statute of Limitations altogether. This ejectment was brought in February 1840, and the commencement of the settlement is stated in the application to have been in October 1820; so that if the beginning of the adverse possession may not be carried further back, the intervening time will be too short. The disability incurred from misrepresenting the commencement of an improvement has never been extended further than to preclude the party from carrying back the commencement of his improvement title beyond the day specified. It was said by Chief Justice Tilghman, in Ewing v. M’Knight, (1 Serg. & Rawle 131) “ that when one derives title under a warrant, he is estopped from carrying his title (under the warrant) further back than the time fixed by the warrant for the calculation of interest.” “ The warrant-holder,” it was said in Nicholls v. Lafferty, (3 Yeates 272) “ has precluded himself from deriving his equitable improvement beyond the day called for in the warrant.” It was not said that he should not set up a subsequently acquired title which had been adverse to his own; and what else is a title acquired by the Statute of Limitations, which, according to Pederick v. Searle, (5 Serg. & Rawle 240) transfers, to the adverse occupant, the title against which it has run. To give evidence of adverse possession is not to. carry back title by the Statute of Limitations to the beginning of it; for the statute is not maturing an inchoate title while it is running its course against an adverse one. The title of the original owner is unaffected and untrammelled till the last moment; and when it is vested in the adverse occupant by the completion of the statutory bar, the transfer has relation to nothing which preceded it: the instant of conception is the instant of birth. But [495] the Chief Justice further said in Ewing v. M’ Knight: “It was his (the applicant’s) duty to tell the truth when he took out his warrant; but if he told a falsehood, with a view of defrauding the proprietaries, it was but justice that he should be bound by his own assertion on all future occasions.” This is a most righteous principle, but it is inapplicable to the case before us; for it is one thing to allege a possession by settlement and cultivation as the foundation of an improvement title, and another to allege an adverse possession by enclosure, or cultivation without residence, to gain a different title by the Statute of Limitations: and it is certainly no reason that because the applicant has defrauded the commonwealth, he shall not be at liberty to assert a title against any one else. The consequence of such a fraud is an estoppel, not a. forfeiture of the land. In proving an earlier adverse possession, the defendants proved an earlier improvement along with it; but that this was immaterial, is shown by Coxe v. Ewing, (4 Yeates 431) in which it was ruled that though an improvement cannot be carried back to establish a title anterior to the time specified in the application, yet the evidence of it may be received to show that the survey of the other party could not legally take effect. “If it included the bona ^Resettlement of third persons,” said Mr Justice Yeates, “ it could not have received the sanction of the land office, or of the country, from their uniform usages. It is true that by going into the testimony, the defendants will receive a degree of benefit from improvements, the equity of which they seem to have abandoned; but this appears inevitable, and flows as a necessary consequence from the investigation of the validity of the survey made for the plaintiffs.” Thus all the cases go upon the ground that a fraud in this particular is a relinquishment of the equity of an earlier improvement; but a title by the Statute of Limitations is not founded on an equity: it is purely legal. The principle of Coxe v. Ewing was reasserted in Wells v. Wright, (3 Wash. 250) in which it was ruled that though a party can not set up title by settlement prior to the day stated in his warrant for its commencement, he may nevertheless give evidence of an earlier settlement for the purpose of contesting a settlement right claimed on the other side. These two cases prove the rule to be that the applicant shall not go further back for the origin of his own title than the day assigned to it in his warrant or application, but that he may do so to affect the adverse title of another; and in that aspect, the evidence of an earlier adverse possession was competent and conclusive. Judgment affirmed.