Bolton v. Hamilton

[299] The opinion of the Court was delivered by Gibson, C. J. It is, perhaps, not to be maintained that a jury is bound to raise a legal presumption of ouster from an exclusive actual possession by a tenant in common for twenty-one years, though it is indicated as the opinion of the court in Mehaffy v. Dobbs, (9 Watts 363). The matter was perhaps not very clearly stated by the judge in that case; but the design was, to put the decision of the point on the basis of Frederick v. Gray, (10 Serg. & Rawle 182), in which it was held that the possession of a tenant in common is to be deemed adverse from the time he exclusively claimed the whole; and so the law was laid down in Phillips v. Gregg, (10 Watts 158), with this qualification, that his claim appear to have been indicated by some unequivocal act, which is perhaps the true criterion. In Frederick v. Gray, it was held sufficient that a claim of exclusive ownership was manifested by the occupant’s acts; yet such acts ought so necessarily and notoriously to import a claim of exclusive right, as to apprize the co-tenant of the nature and existence of it. Thus, in Law v. Patterson, (1 Watts & Serg. 186), the land was purchased and paid for by the co-tenant in possession; and he had not only taken all the profits of it to himself, but had let it, and exercised all the usual acts of exclusive dominion over it, under the immediate eye of his co-tenant, who lived in the neighbourhood, and whose claim to ownership in common rested only upon the fact that his name was found as a grantee in the deed. And perhaps the decision of the court in Hart v. Gregg, (10 Watts 190), went no further, though it contains a dictum that a claim of exclusive right, attended by a receipt of all the profits, is insufficient to let in a presumption of ouster — a position not easily maintainable against the preceding decisions, or that in Doe v. Prosser, (Cowp. 217). It seems to be admitted by the opinion of the court, in Hart v. Gregg, that claiming the whole, and denying possession to the co-tenant, as the law was held in Doe v. Bird, (11 East 219), would have that effect; but it is hard to perceive a substantive difference between such a denial and a claim of exclusive right. The one is perhaps implied by the other, and the difficulty has regard to the notoriety of the act by which the assertion of right is to be proclaimed. Still, the judge below went too far in directing that a receipt of profits merely, may be sufficient to found a legal presumption of actual ouster. Such a receipt, for a great length of time, may indeed raise, not a legal, but a natural presumption of it, passing with the jury for what it is worth, and operating no further than it happens to produce actual conviction of the fact, as it was allowed to do in Nickle v. M’Farlane, (3 Watts 167), where it was ruled-that the jury were not bound to presume an ouster from an exclusive possession of sixty years, even though the parties had not stood in the relation of tenants in common. When the cause goes to another trial, therefore, it will be for the jury to say whe [300] ther they ought to believe, from lapse of time merely, that the plaintiffs or their ancestor had parted with, or lost their title. The judgment is therefore reversed, and a venire de novo awarded.