McMasters v. Bell

[183] The opinion of the Court was delivered by Huston, J. The judge below gave an elaborate charge ; ana taking it into consideration, we are of opinion, there is no error in it. Where a person has a right-of entry into lands, and does enter, it will always be taken that he entered under that right, and not as a trespasser. Here the mother, as the natural guardian, and her husband exercising that right, might well enter; and in the absence of all proof as to his intention, will be taken to have so entered. 1 Plow. 293. Co. Lit 551. 3 Cruise. Dig. 41. Besides he was entitled to the dower of his wife. How McMasters entered, and whether during all the time, or What part of it, he claimed the land as his own, and adversely to the heirs of Bell, was fully left to the jury: — and as favorably for the plaintiff as he had a right to require. If he entered as guardian in right of his wife, and his possession was not at first adverse, it would require some decisive act or declaration to make it so: and whether there was any such, was fairly left to the jury. Neither side shewed any office title. If Robert Bell had taken a warrant and had a survey, the presumption of abandonment would have been less, and the presumption that the plaintiff had entered in opposition to a legal title, would have been less. And on the other hand, if McMasters had taken out a warrant in his own name, it would have been perhaps a more decisive evidence of claim in his own right, than any in this cause. This too the judge told the jury. The fact that John Bell and C. Smith cropped the land, was relied on by the plaintiff. The defendant alleged, that having no team or farming utensils of their own, and their mother being entitled to one third as dower, this proved nothing. All this was fairly submitted to the jury. Judgment affirmed.