Bell v. Longworth

Perkins, J. Longworth and Miles commenced an action of forcible entry and detainer against Bell and Niger, before two justices of the peace, charging them with forcibly and unlawfully taking and detaining the possession of the south-west quarter of. section twenty, in township six south, of range ten west, in the Vincennes land district. An appeal transferred the cause to the Circuit Court, where there was a jury trial upon the general issue, verdict for the plaintiffs, and, after the usual motions to prevent, a judgment for restitution, &c., on the verdict. It appears that the land in question was purchased of the United States by Harrison and Beaman, in 1817, at the price of 2 dollars per acre, they paying down one-fourth of the purchase-money, and receiving, as then allowed by law, a credit for the remaining three-fourths; that in 1820 Harrison and Beaman assigned their interest in said purchase to Paxon and Pearson, merchants doing business in Cincinnati, Ohio, though Paxon resided elsewhere; that said Paxon and Pearson failed in business, being, at the time, indebted to Nicholas Longworth, of Cincinnati, in a sum exceeding 3,000 dollars; and that, to pay said indebtedness, or a part thereof, Pearson, the' acting partner, residing in Cincinnati, sold the interest of said firm in the land in question to said Longworth, and, to convey it, executed to him the following instrument: “For value received, we hereby assign to Nicholas Long-worth, of Cincinnati, all our right and claim to the south [275] west quarter of section twenty, township six south, range ten west, in the district of Vincennes, as witness our hands this 22d day of September, 1821. Charles Paxon and Elijah Pearson, by the acting partner, E. Pearson. Signed and acknowledged in the presence of Peyton S. Symmes, register land-office, Cincinnati.” The quarter-section was, at this date, an unenclosed, un-_ broken forest. It further appears that in 1822 Longworth appointed an agent to take charge of his purchase, and has since continued the agency uninterrupted; that the agent has resided near or upon the land, which is situate adjoining Evansville, in this state; that, in the language of one of the witnesses, “the whole quarter-section was included in his agency; he cut timber over it, prevented others from cutting, warned people'off of it, and employed other persons to watch trespassers and keep them off.” He paid the taxes upon the quarter, leased portions of it to different ihdividuals, by whom some clearing and fencing were done; but the whole tract was never enclosed; though the oldest inhabitants of the vicinity say it had always been called and known amongst them as Longworth!s quarter.. It also appears that in 1825 payment was made to the United States of the purchase-money then unpaid upon the quarter; but there not being forwarded to the land-office an assignment of the certificate given to Harrison and Beaman, the original purchasers, and by them assigned to Paxon and Pecuson, the receipt and patent issued nominally to the persons .last named. The record shows, likewise, a conveyance by Longworth of the undivided half of said quarter to Miles. Such is the evidence of title respectively in those two persons. As to the entry upon and detainer of the-land by Bell and Eiger, there was evidence tending to prove that they knew it belonged to, or was claimed by, Longworth; that it was in charge of his agent, and patches of it in possession of his tenants; and that, with this knowledge, in. Janua/ry, 1852, they entered upon a portion of the cultivated part of the section, commenced fencing it, working [276] night and day, surrounded by a force, some of it armed, sufficient to repel any persons that might interfere with them; and which, by threats and hostility of attitude, did repel the agents of Longworth from their attempts to remove the fence. Bell and Kiger claimed the right to enter upon the land by virtue of deeds from some of the heirs of Paxon, executed to them in 1851. Such are the principal facts of the case, and upon them two material questions arise: 1. Were Longworth and Miles in possession, under a claim of title, of the land entered upon by Bell and Kiger? 2. If so, were the entry and detainer, or either of them, of the latter forcible? Longworth and Miles were undoubtedly in possession of some portion of the quarter-section upon which Bell and Kiger made entry; were they of all? In the second volume of Smith’s Leading Cases, p. 477, two propositions are laid down as being generally accepted by the Courts, and they are borne out by the authorities, viz.: 1. “Where one enters, not under any deed or written title, but merely assuming the possession with claim of right, the ouster he effects extends no further than he occupies, cultivates, encloses, or otherwise.excludes the owner from.” 2. “But if one enters under color of title by deed or other written document, and occupies and improves the land, he acquires, in law, actual possession to the extent of the boundaries contained in the writing, and this, though the title conveyed to him by the deed is good for nothing.” And in Ellicott v. Pearl, 10 Peters R. 412, per Mr. Justice Story: “ Nothing can be more clear, than that a fence is not indispensable to constitute possession of a tract of land. The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts which are equally evincive of such an intention of asserting such ownership and possession; such as entering upon the land and making improvements thereon, [277] raising a crop of corn, felling and selling the trees thereon, &e., under color of title.” It -will be appropriate here, then, to institute the inquiry, whether Longworth went into possession under color of title; for if he did, his possession would extend to the whole quarter-section, under the assignment from Faxon and Pearson; and should we so conclude, it will be unnecessary for us to decide the other point, as to whether such acts were performed—such a possession taken as would embrace the whole tract, regarding Longworth as a mere intruder, though, we will remark, that such is the inclination of our opinion. What, then, in a question of adverse possession, constitutes color of title ? It was held in some of the earlier cases in New-York, and has been in cases following those elsewhere, that color of title was that which appeared prima facie a good, while it was in fact a defective title. But this doctrine is without reason, and is being abandoned. When a party is in possession of land, claiming an adverse title, the question must always arise, to what extent does his claim reach, what lands does his claim of title cover? And where there is nothing but naked possession to evidence it, his title must, from necessity, be limited to the lands over which he has exercised a visible authority, known to others, as owner; to those, in short, from which he has excluded the former owner and others. A man can not go, solitary and alone, to the prairies or forests of the west, set himself down in the middle thereof, and claim that he possesses all, to an undefined extent, not then actually possessed by some one else. He must be limited to that portion over which he exercises palpable and continuous acts of ownership, as being the quantity which he claims as his own, there being no other evidence, in such case, to enable us to determine the quantity. But where a party is in possession under and pursuant to a state of facts which, of themselves, show the character and extent of his entry and claim, the case is entirely different; and such facts, whatever they may be in a given case, perform [278] sufficiently the office of color of title. They evidence the character of the entry and extent of the claim, and no colorable title does more; for such title alone- does not give right; and possession under such facts as above indicated would be constructive notice, on general principles of law, to all the world, of the character of the claim of title. Hence, it has been decided that possession, under a “sale or gift of land by parol,” is under color of title. Sumner v. Stevens, 6 Met. 337.—Angell on Limitations, 3 Ed., p. 503, and cases cited. To the same effect, Fain v. Garthwright, 5 Georgia R., cited in note on page 504, Angell, supra. So, under an assigned land-office certificate, transferred in this state in 1817; Holcroft et al. v. Hunter, 3 Blackf. 147; a case somewhat similar to the present. J. G. Jones and J. E. Blythe, for the appellants. C. Baker, for the appellees. Under these decisions, it is perfectly clear that Long-worth went into possession under color of title, and that his possession extended to the whole quarter. The assignment, in this case, from Paxon and Pearson, whether valid or not, was doubtless believed to be so. It was under it that Longworth entered. It shows his entry to have been in good faith, on claim of right, and defines the exact extent, the exact boundaries claimed to; and his possession, under the claim, having been continuous for more than twenty years, has perfected his title to the whole quarter. No question arises in this case as to mixed possession, that is, where different persons are in possession of different parts of the same tract, under different claims of title; and the modifications of the general doctrine of adverse possession such a state of facts occasions, need not be here noticed. See, however, on this point, the elaborate cases of Hoye v. Swan’s Lessee, 5 Maryland R. 237, and Armstrong v. Ristean’s Lessee, id. 256. Upon the second question, we think the jury was authorized to infer from the evidence a forcible entry and detainer on the part of Bell and Kiger. See Evill v. Conwell, 2 Blackf. 133. Per Curiam. The judgment is affirmed with costs.