Williams' Lessee v. Burnet

BY THE COURT. Mere intruders are not allowed to rest upon presumption of adverse possession, against a clear pap er title. The [54] ^plaintiff is bound to show a right of possession before he can [54 recover. But proof of legal title is prima facie evidence of a right to enter and enjoy; for the fee includes that right. This presumption must be rebutted by him who sets up an adverse claim, whether under the statute of limitations or otherwise. In England, and in some of the states, the statute of limitations bars only the action of ejectment, and leaves the title to be investigated in the writ of right, in which seizure in deed is necessary to a recovery. Our statute bars the right. The claim of protection, under the statute, in ejectment, is presumptive, and rests upon the hypothesis that the plaintiffs having a legal right, have been kept out of possession by adverse possession, and that that possession has continued 20 years. The proof in this case, showing the origin of the title, negatives the presumption. Fox and Caswell contended that the will was inadmissible in evidence, because it had no seal, which was requisite, to pass real estate, and cited the act requiring seals, of the 11th February, 1805. A non suit will not be ordered where there is any evidence tending to prove the plaintiff’s case, and it is well settled, that from one fact proven, or admitted, you may infer another. Here it is proven that the defendant was in possession thre.e years ago. The jury may infer that it did not begin before, and so negative the presumption of its having continued 20 years adverse. This may also be inferred from the recent settlement of the country; particularly as the legal title draws to, and carries with it, the right of possession; Holts heirs v. Hemphill; 3 O. 237. The motion for a non suit is overruled. The defendant then proved from the sales-boolc of the proprietors of Cincinnati, an entry of the sale of lot 209 to Jacob Burnet, and marked on the margin opposite, “Deeded” Also a deed from Symmes to him, dated 21st May, 1803, and evidence that he had been exercising ownership over the lot for twenty-eight years and more; had paid the taxes since 1803 down to 1832, and that no one knew of any other claim until just before this suit was brought. He then offered in evidence a will of Samuel Williams, dated 25th November, 1825, in which, after some specific devises, he devised all the residue of his estate to his wife. Probate was made of this will in 1825, and no contest had been entered. This was objected to, but upon the suggestion of the court, a verdict was taken, subject to its opinion on the law. WRIGHT J. If the will is operative, it is conclusive in favor of the defendant in this suit. The law requiring seals to wills, intended [55] 55] *to pass real estate, was repealed on the 22d December, 1824; 23 O. L. 16; and no seal to a will, for any purpose, has been required since that time. The objection to the will then upon that ground fails. This opinion does away the necessity of examining the other points in the case. The verdict and judgment were entered lor the defendant.