Van Bibber v. Ferdinand

GoLDsnoRooun, J., delivered the opinion of this court: This is an action of ejectment, brought in the circuit court for Allegany county by the appellants, on the 18th day of December 1856, to recover one undivided fourth part of a tract of land called ‘-'Elk Garden,” containing about six thousand acres of land lying in Allegany county. The lessors of the plaintiff claim this undivided fourth part of the said tract, as the heirs at law of Andrew Van Bibber, and concede that the defendants are entitled to the other three-fourths, tracing their title through Henry P, Van Bibber and a certain Brice W. .Howard. The defendants came into court and having under the consent rule, confessed lease, entry and actual ouster, pleaded the general issue, and prayed the court for a warrant of resurvey. The warrant was accordingly issued, and the surveyor returned his certificate of resurvey. There being no question as to location, the plats and certificates form no part of this record. While the defendants concede that the plaintiff has the paper title to the property in controversy, they yet maintain, that the plaintiff’s lessors are barred from recovery by the adverse possession of the defendants, and of those under whom they claim. At the trial below, trie defendants to sustain the issue on their part, offered sundry deeds mentioned in the record, to the admissibility of which the plaintiff excepted. They also offered the evidence of Thomas Dovocmon and William Waltz, to which the plaintiff also-excepted. The plaintiff’s [450] lessors then presented to the court nine prayers, and the defendants two prayers. The court rejected each of the plaintiff’s prayers, and granted those of the defendants; to which ruling of the court, the plaintiff excepted. And the verdict and judgment being for the defendants, the plaintiff appealed to this court. The lessors of the plaintiff, and the defendants or those under whom they claim, standing in the relation of tenants in common, it would have been necessary for the plaintiff in the absence of the confession by the defendants, of lease, entry and actual ouster, to prove the ouster to entitle him to recover. In the case of Tongue vs. Nutwell, (ante 212,) decided by this court at the present term, the rule laid down in Dorsey on Eject., page 16, sustained by Adams on Ejectment, 263, was recognized-and approved; that “the defendant ought to have applied to the court upon affidavit for a special rule to confess lease, entry and not ouster. And if the tenant in common, &c., acknowledges the ouster, he will be precluded from denying, or, in other words, of showing, that the plaintiff has not been injured.” Regarding this case as dependent on the question of adverse possession alone, and conceding that the written and parol evidence excepted to, was properly permitted to go to the jury; yet we are of opinion, that the court below erred in rejecting the prayers of the plaintiff, and as the prayers of the defendants are but the converse of those of the plaintiff, they ought to have been rejected. The witnesses Waltz, Smith and Bosley, upon whom the defendants rely to show an adverse possession, state that Howard, in the year 1S31 or 1832, took possession of “Elk Garden,” that he cleared some portion of the land, about sixty acres, deadened a small portion of the timber, built two houses, and claimed the whole tract; yet there is no evidence that those claiming title under him, were ever in possession or that they claimed the whole, nor is there any evidence to show, that Howard’s claim was ever brought to the knowledge of the lessors of the plaintiff, or to the knowledge of those under whom they claim. [451] (Decided Oct. 29th, 1861) It is a familiar principle of law, that a tenant in common enters upon land held in common, rightfully, that his possession is lawful, and his acts of ownership are authorised, and no inference of adverse possession can be made from such facts. Whenever one tenant in common is in possession, his co-tenant is, in contemplation of law, in possession also, and it is necessary to prove an actual ouster to rebut this presumption, and the onus of proving the achual ouster, is on the party alleging it. Adams on Eject., 54. 4 Kent, 387. The actual ouster need not be proved to have been accompanied by positive force, but must be established by acts or declarations, brought home to the knowledge of the co-tenant. The mere fact that one tenant in common, has been in exclusive possession of property for more than twenty years, and that he has in that time, received all of the profits, will not constitute ail actual ouster or adverse possession. Lloyd vs. Gordon, 2 H. & McH., 260. McClung vs. Ross, 5 Wheat., 124. In Northrop vs. Wright, 24 Wend., 224, 225, it was held, that where the interest of one tenant in common was sold at sheriff’s sale, and the purchasers conveyed to others, who were in possession for twenty-seven years, without acknowledging the title of the other co-tenants, it was not considered sufficient to create the presumption of an ouster. Chief Justice Marshall, in McClung vs. Ross, 5 Wheat., 124, says, there must be some “act which can amount to an ouster, or notice must be given to his co-tenant that his possession is adverse.” One of the elements of title by adverse possession is, that it is a hostile invasion of another’s rights. Armstrong vs. Risteau’s lessee, 5 Md. Rep., 257. Some positive act must show it. 10 G. & J., 457. We regard these principles of law as applicable to this case, and the prayers of the plaintiff fully sustained hy them and the authorities cited. They ought therefore to have been granted, and the defendants’ rejected. Judgment reversed and procedendo awarded.