Keener v. Kauffman

Tuck, J., delivered the opinion of this court: This is an action of trespass, quare clausum fregit, by the appellant against the appellee, which was tried on issues framed upon the pleas of non cul, and liberum tenementum. The defendant below has the paper title, the plaintiff claim [306] ing by possession in himself, and those under whom he claims, for more than twenty years. After the parties had offered much parol and documentary evidence, the plaintiff submitted three prayers, all of which Were refused by the judge below, who gave a verbal instruc'f.ioit.' The plaintiff excepted to the refusal of his prayers, but not to the direction as given by the court. He also excepted to the admissibility of a portion of the evidence of G. orge Myers, offered by the defendant. As the first prayer is based on the principle that possession is sufficient to maintain an action of trespass q. c.f., against all persons except the legal owner, it is necessary to determine how far that doctrine applies to the present case, in ■view of the issues made by the pleadings. The plea of liberum tenemeutwm admits possession by the plaintiff, but does it admit such a possession as entitles him to sue in the particular case? The nature of the plea — what it admits, and what, it denies — was discussed in Hunter vs. Hatton, 4 Gill, 125, where we are told that “it must admit such a possession as would suffice to maintain the action, if unanswered, or as against a wrong-doer. On the other hand it must deny a rightful possession, or it would fail asa defence to the action. It gives implied color to the plaintiff, but asserts a freehold in the defendant, with a right to immediate possession.” Where, in answer to such a plea, the plaintiff replies a term created by the defendant, the freehold of the latter is admitted, with the assertion of a right of possession in the plaintiff, under the terms. Under that issue the plaintiff’s right of possession would be the question to be decided. But Where, as here, a special replication is not filed, and the issue is joined on the plea of liberum tenementum, the matter in issue is the freehold of the defendant, and if the jury find tl t fact they have nothing to do with the right of possession. ' be plaintiff’s traverse of the plea admits the defendant’s right to the possession, should the jury find him entitled to • the freehold. This prayer is, therefore, clearly defective in leaving but of view all notice of the freehold title, and placing the plaintiff’s right to recover on mere proof of possession, [307] without reference to its character as an adversary holding against the legal owner. The second prayer asserts the plaintiff’s right, to recover on proof of possession in the plaintiff, and those under whom he claims, from 1817 to 1845, “by enclosure, and by the use and cultivation of the property so enclosed,” on the ground that such possession barred the defendant’s entry. Without passing upon all the objections urged against this prayer, we think it was properly refused. Conceding, which we do not decide, that where there is no evidence to explain the character of the entry and possession, the court may instruct the jury — -as a conclusion of law — that possession by enclosure for twenty years is sufficient to bar the entry of the owner, without submitting to the jury to find whether it be an adversary holding as against him, we have no doubt that, if there be such evidence, it must be embraced by the prayer, to enable the jury to ascertain the fact of adverse possession, from all the proof in the cause applicable to that question, embracing the intent with which the entry was made, the nature of the possession, and the acts of ownership, conduct and declarations of the party under whom title by possession may be claimed. Helms vs. Howard, 2 H. & McH., 76. Matthews vs. Ward, 10 G. & J., 443. 1 Gill, 449. Adams on Eject., 505. In this case the prayer confines the jury to possession by enclosure and cultivation, without noticing the declarations of Nathan Tyson, under whom the plaintiff claims, made before the sale, and proved by Myers and Nicholson. Under the instruction the plaintiff would have been entitled to the verdict, although the jury might, have believed that Tyson had offered to sell his wife’s land demised under Ellicoft’s will, without including this disputed lot in the sale, and had said that he did not claim it, and could give no title to it. These were important fuels, if found by the jury, because Tyson had been the agem of EUcoit in his life time, in reference to the properly winch he devised to his daughter, Mrs. Tyson, and had had the possession and management of it since Eilicott’s death, and tended to show that neither he nor Ellicott regarded the possession by [308] enclosure as .of such a character as conferred title to the land, by adversary holding against the owner. (Decided June 29th, 1860.) The third prayer, reciting substantially the same facts, assumes that they are sufficient to authorize-indeed, to require— the jury to presume a deed to Tyson. For the reasons above stated, this prayer was also properly rejected. If the jury believed that Tyson had no title to the land in 1851, and could give none to his vendee — of which his own admissions were evidence — how could they find that he had a deed from Mie defendant, or those under whom he claims? The remaining question relates to the admissibility of that portion of Myer’s evidence which was objected to by the defendant. Title to land cannot be shown by parol. The law prescribes other modes of acquiring legal estates. But, although parol admissions are incompetent to prove facts that cannot be lawfully established by parol pro of, (1 Greenlf Ev., 203,) “the declarations of a man respecting his title, made before he parts with his estate, are evidence against him, and all claiming under him.” Dorsey vs. Dorsey, 3 H. & J., 426. See, also, Clary vs. Grimes, 12 G. & J., 31. 1 Greenlf. Ev., sec. 189. 2 Metcalf, 363. In this case the plaintiff relies on title by possession, Tyson being one of the alleged occupants, under whom he claims. The possession, to be effective, must have been adverse to the claims of the owner, which, as far as Tyson was concerned, was without claim of title, if this witness can be relied on. It is clear that the character and extent of the possession maybe shown, and no more reliable testimony on the question could have been offered than his declarations as proved by Myers. Judgment affirmed.