Iler v. Routh's Heirs

Mr. Justice Trotter delivered the opinion of the court. Several questions have been presented for the determination of this court on this statement of the case. The first is, whether the court below had any authority to allow the bill of review on the grounds stated in the application to the court for that purpose. The rule on this subject is well settled. A bill of review can only be granted after an enrolment of the decree,' for error apparent on the face of the decree, or upon some new matter ,as a release, receipt, &c., proved to have been discovered since. 2 Mad. Chan. 536; Taylor v. Sharp, 3 Peere Williams, 371; 3 Atkyns, 35. In the case of Wiser v. Blachley, 2 Johns. Chan. Rep. 490, this rule is stated as the ground for dismissing the petition for a rehearing. In the case of Livingston v. Hubbs, 3 Johns. Chan. Rep. 126, the same rule is recognised and applied. The newly discovered matter, for which the decree is sought tobe reviewed, must not be relevant only; it must be distinct, and such as could not, upon reasonable diligence, have been ascertained. In the case last cited, the ground of the decree was, that certain land had been represented to the complainant to be of good quality, and fit for cultivation, when in fact it was not. Whether the land was so represented, and so defective, was the main question in the cause, and the newly discovered evidence was such as had a tendency to decide that issue. The petition for the bill of review stated that, since the decree, the defen — 293 — dnnt had discovered that several of the witnesses had mistaken the land in question, and had testified respecting lands adjoining thereto.' That since the decree'he had procured the tract in question to be survéyed, and that several intelligent persons had since visited it, and declared it to be as he had represented it. The chancellor refused the application. He said the defendant’s attention was called to the very fact, by the issue submitted under the pleadings, and he was bound to use reasonable diligence in bringing forward his proof on that point. A bill of review is not to be sustained merely to accumulate testimony. The nature of the newly discovered evidence must be different from that of mere accumulation of witnesses to a litigated fact. This is the rule in the analogous case of an application for a new trial at law, and it is one which is never departed from. It is a sound and salutary one, designed to restrain litigation, avoid perjury, and give stability to the tenure of property. The case before us, is very similar in fits features to that of Respass v. M’Clanahan, Hardin’s Rep. 342. In that case, the cou>t lay down the rule as it has already been stated, and proceed to say, that after the most diligent search, they could not find one case reported, in which a bill of review has been allowed on the discovery of new witnesses, to prove a fact which had before been in issue. If the rule were otherwise, it might, as was observed by the chancellor in the case of Taylor v. Sharp, 3 Peere Williams, 371, be used for vexation and oppression, and the cause never be at rest. Or, as remarked by the court in the case of Respass v. M’Clanahan, the dangers and mischiefs to society are too great to be endured, if, whenever a new witness can honestly, or by subornation, be found, whose testimony may probably change a decree in chancery, a bill of review is allowed. If such a rule were allowed, when would there be an end of litigation? The ground of the decree in the present case, was the verdict of the jury upon the issue, whether the complainant was the heir of Mark. Her. The fact of his heirship was expressly charged by the complainant in his bill, as the foundation of his title to the land in dispute, and it was expressly denied in the answer of the defendant. The attention of the complainant was, therefore, necessarily called to it, and he was bound to use due diligence in bringing forward his — 294 — proof. This was an important point in his case; for if found against him, it must'be- fatal to his cause. He was bound to bring forward all the testimony in his power, and cannot be permitted to experiment upon the sufficiency of the evidence produced, and when that is found too weak, have permission to mend his hold, and add to the force or number of his witnesses. Yet this was the case in the present instance. After the issue has been found against him, on the proof which he thought proper to adduce, he asks a bill of review, not for any error apparent on the face of the decree, nor for any new and distinct matter, but to obtain the testimony of other witnesses to add to and strengthen his former proof. He refers to' several witnesses who will make stronger and fuller proof of his heirship. This was, therefore, cumulative testimony merely, and was not proper ground for a bill of review. No objection was, however, made to the granting of the bill in the court below, no demurrer filed, nor any question in any form made upon it, and it is too late to urge the objection after, an appeal to this court. In this case the appellees gave it at least an implied sanction by taking depositions, and going to trial afterwards before the chancellor. If the question were properly before us, we should have nó hesitation in dismissing the bill; but it is a general rule, founded in much reason and great convenience, that no objection can be made in the court of errors which was not taken in the court below. The second question for our consideration is, whether the complainant did establish the fact of his heirship as charged in his bill. This is purely a question of fact to be decided upon the proofs in the cause. The fact was once determined, by a jury, against the complainant. But it is insisted that the chancellor erred in directing an issue to the jury, because the proof was all on one side, and in favor of the complainant. It is, however, a general rule fully sustained by authority, that the chancellor may, whenever his mind is thrown into a state of doubt and uncertainty as to the preponderance of evidence, send an issue to the country; but he has a right, with certain exceptions, to take upon himself the decision of every question of fact in the cause; and this rests in his sound discretion. 2 Mad. Chan. 474. We are certainly of opinion that the weight of the evidence was clearly — 295 — for the complainant on this issue, and that the chancellor might, with great propriety, have so determined. But as he has seen proper to take the verdict of the jury, we are not at liberty to pronounce it error. It was a matter of discretion with the chancellor, and we can have no farther concern with it than to consider of its effects upon this question in the cause. The mind of the chancellor concurred with the opinion of the jury; and we might feel inclined to attach much weight to this determination, if it had not been subsequently opened by granting the bill of review. We are, therefore, constrained to consider this question unconnected with the verdict, and uninfluenced by it. The whole weight of the evidence is manifestly for the complainant. Several witnesses have sworn positively and affirmatively to the fact of the marriage of Mark Iler to Mrs. Hootsell, who is admitted to be the mother of the appellant. The ceremony of marriage was performed at the post of Arkansas, and by a person who swears that he was authorised by the authorities at that place to do so. We are not informed what was the law on this subject at the place where the marriage took place. It was a military post, with but few persons, in a remote wilderness. There was no regularly established form of government; and was probably governed by the usages of the mother country, so far as they could apply. What they were, is, however, totally immaterial. It is clear from the whole testimony, that there was a contract of marriage between Mrs. Hootsell and the complainant’s father, and that it was formally and solemnly acknowledged and avowed by both parties, as proved by the deposition of William Crooks. He testifies that they were lawfully married, and refers to the year when it occurred. Katharine Kimball also swears positively and affirmatively to the fact of the marriage, and confirms the statement of Crooks. She states the house where the ceremony was performed, by whom, and who were present. She says the marriage was celebrated according to law, and is particular in mentioning the presence of Mrs. Bolton. She also proves the birth of the complainant, about eleven months after this marriage, and that Mark Iler recognised him as his son. These statements are confirmed by the testimony of several of the witnesses, who speak of the general — 296 — reputation which prevailed, that Abram Iler, the appellant, was the son of Mark Iler. It is true that several witnesses proved that the complainant was called by the name of Fixton. But this testimony is easily reconciled with the evidence of Mrs. Kimball, when it is recollected that Mark Iler separated from the widow Hootsell, after living with her about seven months, and that she afterwards lived with a man of the name of Fixton. The complainant being then an infant, was, of course, taken by his mother, and would very naturally be called by the name of his mother’s husband. This may readily account for the confusion of names by which he was known. But this negative evidence can never be permitted to control the direct and affirmative testimony of the other witnesses. We are, therefore, of opinion that it is clearly established by the testimony in this cause, that the complainant is the heir at law of Mark Iler. He is, therefore, entitled to recover the land in controversy, unless his claim has been barred by the length of time which elapsed after he attained the age of twenty-one before the institution of this suit, and that is the third and last point of inquiry. In the case of Smith v. Clay, Ambler, 645, the rule is laid down by Lord Camden to be, that, as often as parliament had limited the time of actions and remedies to a certain period, in legal proceedings, the court of chancery adopted that rule, and applied it to similar cases in equity. In the case of Elmendorf v. Taylor et al., 10 Wheat. 152, it is said, that, from the earliest ages, courts of equity havé refused their aid to those who have neglected for an unreasonable length of time, to assert their claims, especially where the legal estate has been transferred to purchasers without notice. The same doctrine is stated and applied in the case of Clapp v. Bromagham, 9 Cowen, 530. Courts of equity have, therefore, uniformly adopted the limitation which is prescribed in the analogous proceeding at law. For, although the act of limitations does not extend to them in terms, yet they have always acknowledged the obligation of them. By the provisions of the first section of the act for the limitation of actions, every real, possessory, ancestral, mixed, or other action for any lands, tenements, or hereditaments, shall be brought and instituted within twenty years next after the .right or title thereto, or cause — 297 — of such action accrued, and not after, &c. A proviso is then added in favor of infants, &c. If more than twenty years had elapsed after the appellant attained the age of twenty-one years, before the commencement of this suit, his remedy is, therefore, clearly barred by this statute. The bill of complaint, in this case, was filed in January, 1827, at which time, according to the evidence, the complainant was upwards of forty years of age, and when, according to the admissions of the parties, he had been of age more than twenty years. But it is insisted by the appellant, that the defendants are not entitled to the benefit of the bar prescribed by the statute, because they are tenants in common with the complainant. The entry upon the land by Jonas Iler, one of the heirs of Mark Iler, deceased, and under whom the defendants claim title, was as heir of Mark Iler, it is said, and his entry and possession were not adverse to, but in consonance with the rights of Abram Iler, the other heir. It is unquestionably true, that in general, the entry of one heir will inure to the benefit of all, and that if the entry is made as heir without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with the rights of the other heirs. But it is as clear that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger, and notwithstanding an entry as heir, the party may afterwards, by disseisin of his co-heirs, acquire exclusive possession, on which the statute will run. Such was the determination of the Supreme Court of the United States in the case of Ricard v. Williams, 7 Wheat. 59. It is true in that case, the court say, that ouster or disseisin is not to be presumed from the mere fact of sole possession, but that it may be proved by such possession, accompanied with a notorious claim of an exclusive right. In the case before us, Jonas Iler took possession of the land in dispute upon his father’s death, and we have the strongest evidence of his -claim of an exclusive right as heir at law from the fact of the sale made by him shortly afterwards, to Job and Jeremiah Routh, and taking to himself the whole of the purchase money. The Rouths paid Jonas Iler six hundred dollars for the land. This was in 1793. And it is very evident that no matter what relation Jonas Iler may have occupied towards Abram, anterior to this transfer, from this time that relation — 298 — ceased, and there was a disseisin. No force or violence is necessary to constitute an ouster. Any act of one joint tenant which is evidence of a claim of exclusive ownership, such as taking all the rents and profits to himself will constitute a disseisin. But how can it be said, that the subsequent possession of the Rouths was in consonance with the rights of Abram Iler? Is there any thing in their conduct which recognises his rights? On the contrary, is not their possession accompanied by a multiplicity of acts, all demonstrative of a claim of exclusive ownership? Shortly after the purchase from Jonas Iler, they procured from the representatives of Row the patent which had issued in his name from the Spanish government, and also obtained from his widow and executrix, a conveyance of the legal title to the land to themselves. And afterwards, on the 2d day of October, 1805, obtained from the board of commissioners, west of Pearl river, a certificate of the confirmation of their grant. In all these steps, no notice is taken by them of Abram Iler, nor any recognition of his rights. On the contrary, these proceedings do assert in so many words, an exclusive right in the Rouths. How then can it be insisted, that the possession of the Rouths in this case was not adverse to the rights of Abram Iler? This case is precisely the same in principle with that of Clapp v. Bromagham, 9 Cowen, 550. In that case, it is stated, that the ancestor under whom the petitioners claimed title to the land in dispute, died a lunatic, and that he was seised of the premises in fee. That he had nine children at his death, amongst whom were the petitioners, and Peter and Isaac Bromagham. After the ancestor became a lunatic, and ¿bout four years before his death, Peter and Isaac, by the common consent of the family, took the possession and management of the farm; that Peter was afterwards appointed by the court of chancery, the committee of the person and the estate of the lunatic; that Peter purchased the share of Isaac in the premises, after which, he had the sole possession of the whole of the land at the time of the death of the lunatic, and claimed to be the absolute, and exclusive owner of the same; that he continued to hold the same as his own adversely to all other persons, until he sold and conveyed the same to John Clapp, the plaintiff in error, who continued in possession, as the sole and absolute owner for more — 299 — than twenty years. Upon this statement of the facts, Clapp, in answer to the claim of the petitioners for partition of the land insisted upon the statute of limitations of twenty years as a bar; and it was argued by the petitioners, that the parties stood in the relation of tenants in common to each other, and that the possession of one of them was in judgment of law, the possession of all of them. It was said, as it has been in the case before us, that the title of the defendant was derived from the same source with that claimed by the petitioners, and that under the title derived from Peter, the defendant entered as tenant in common with the petitioners. But the chancellor said there was no color for these suggestions. On the contrary, Clapp entered as purchaser of the whole, his title was adverse to the petitioners, he never held in common with them, nor acknowledged any right in them. How then, asks the chancellor, could that seisin and possession inure to the benefit of the petitioners? If the possession of the defendant in that case was deemed adverse, the possession of the Rouths in the present case is equally so. The two cases are identical in principle. According to the modern and approved interpretation of an adverse possession, it is held to embrace every possession held by the possessor in exclusion of others. In the present case, Jonas Iler took possession of the land upon the death of his father, and continued in possession as sole owner, and claiming the whole, until he conveyed the land to the ancestors of the appellees. That conveyance was most clearly the exertion of an act of ownership, inconsistent with the rights of others, and was virtually an ouster. The subsequent possession of the Rouths, was manifestly adverse to the complainant. The sale by Jonas Iler, was perfectly decisive of the character of his entry, and the exclusive nature of his possession. Though it be true that the entry of one tenant in common is the entry of both, yet, if one enter, claiming the whole, this will be an entry adverse to his companion. 14 Viner, 512 These principles are deemed decisive of the present case. Jonas Iler claimed the whole estate, and sold it to the appellees/ who have held it adversely to all the world, for nearly thirty-five years, keeping all others, during that time, out of possession. This is, therefore, considered by us to be a clear case for the application of the statute of limitations. But it — 300 — is contended, that the statute does not bar the appellant’s claim in this case, because the Rouths obtained possession of the land by fraud, and that in equity and good conscience, they are to be regarded as trustees for him. But there is not the slightest foundation for this charge. The fraud is positively denied in the answer, and no witness was called to prove it. We are not at liberty to presume fraud, and when relied on, it must be strictly proved. We are not able to perceive in the whole record, any fact which exempts this case from the operation of the statute. The decree of the chancellor must be affirmed, with costs to the appellees, and the bill dismissed.