Fletcher v. Fuller
120 U.S. 534 (1887)

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U.S. Supreme Court

Fletcher v. Fuller, 120 U.S. 534 (1887)

Fletcher v. Fuller

Argued January 18-19, 1887

Decided March 7, 1887

120 U.S. 534

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF RHODE ISLAND

Syllabus

Defendants in ejectment having produced a regular chain of title under a deed from a grandson of the original owner of a lot in Rhode Island, including the land in controversy, which was executed in 1768 and recorded soon afterwards in the land records of the town in which it was situated, and having shown that the ancestors in title paid the taxes on said lot for twenty years preceding 1805, and that afterward, up to the trial of the action in 1882, a period of seventy-seven years, they or their ancestors in title had uninterruptedly paid the taxes on the lot, and having shown an entry in 1835 by their ancestor upon the lot under a deed for the purpose of quarrying a ledge of rock running through it, and the quarrying of the ledge with occasional intervals from 1846 to the commencement of this action in 1874, a period of twenty-eight years, the said entry being made with claim of title to the whole lot. Held, in an action brought by the heirs of the devisee of the original proprietor, under a will executed in 1749, and probated in 1756, none of whom had made any claim to the premises for three-quarters of a century after the death of the original proprietor, under whose will they now assert title, nor paid taxes on that property, nor after that time ever taken possession of the premises or paid taxes upon them, that the jury might presume a deed to the grandson from the original proprietor, or from his devisee, to quiet the possession of the defendants claiming under such grandson, and that in making such presumption, the jury were not to be restricted to consideration of

Page 120 U. S. 535

what they fairly supposed actually occurred, but to what may have occurred, and seems requisite to quiet title in the possessors. It is sufficient that the evidence leads to the conclusion that the deed might have been executed and that its execution would be a solution of difficulties arising from its nonexecution.

Though a presumption of a deed may be rebutted by proof of facts inconsistent with its supposed existence, yet where no such facts are shown and the things done and the things omitted with regard to the property in controversy by the respective parties for long periods of time after the execution of the supposed conveyance can be explained satisfactorily only upon the hypothesis of its existence, the jury may be instructed that it is their duty to presume such a conveyance, and thus quiet the possession.

Though as a general rule it is only where the possession has been actual, open, and exclusive for the period prescribed by the statute of limitations to bar an action for the recovery of land that the presumption of a deed can be invoked, yet that presumption may properly be invoked where a proprietary right has been exercised beyond such statutory period, although the exclusive possession of the whole property, to which the right is asserted, may have been occasionally interrupted during such period if, in addition to the actual possession, there have been other open acts of ownership.

The assessment of taxes on an entire parcel of real estate to the person in possession under claim of title and to his ancestors and privies in estate for over a hundred years is powerful evidence of a claim of right to the whole lot, and, taken in connection with the exclusive working of a quarry on the estate for more than twenty years under claim of title to the whole tract, by virtue of conveyances in which it was described, may authorize a jury to infer continuous possession of the whole notwithstanding a temporary and occasional intrusion by others upon a different part of the tract which did not interfere with the work.

Ejectment for a tract of land in Rhode Island. Verdict for

plaintiff, and judgment on the verdict. Defendants sued out this writ of error. The case is stated in the opinion of the Court.

Page 120 U. S. 537

MR. JUSTICE FIELD delivered the opinion of the Court.

This is an action of ejectment to recover possession of twenty-seven twenty-eighths undivided parts of a tract of land, containing about fourteen acres, situated in the Town of Lincoln, formerly Smithfield, in the State of Rhode Island. The plaintiff, a citizen of Connecticut, sues the defendants, citizens of Rhode Island, in his own right and as trustee for others.

The declaration contains several counts, all of which except two are withdrawn. In these, the plaintiff alleges that on the 25th of October, 1874, he was "seized and possessed in his demesne, as of fee in his own right and as trustee," of twenty-seven twenty-eighths undivided parts of the tract of land which is described, and that the defendants on that day and year, with force and arms, entered thereon and ejected him therefrom, and have ever since withheld the possession, to his damage of one thousand dollars. The two counts differ merely in the description of some of the boundary lines of the tract. The defendants pleaded the general issue and twenty years' possession under the statute of possessions. Upon these pleas issues were joined, and the case was tried, the parties stipulating that the plea of the statute should be held to apply to any period or periods of twenty years that could be covered by any other like plea that might have been filed, and that either party might offer any evidence and rely upon any matters that would be admissible under such plea or pleas, and any proper replications or other proceedings thereon. The case was tried three times, resulting the first time in a verdict for the defendants, and at the other times in a verdict for the plaintiff. The judgment on the last verdict is brought before us for review by the defendants on a writ of error. Numerous exceptions were taken in the progress of the trial to the rulings of the court in the admission and rejection of evidence and to the instructions given and refused to the jury, but the conclusions we have reached with respect to the instructions given and refused, as to the presumption of a deed to the ancestors in title of the defendants, render it unnecessary to consider the others.

Page 120 U. S. 538

It appears from the evidence at the trial that the land in controversy was the westerly part of a tract of 33 3/4 acres, belonging in 1750 to one James Reed, and which, by early conveyances, became divided into three parcels, one containing 22 1/4 acres, one 5 1/2 acres, and the third 6 acres, as shown by a diagram submitted, by consent of parties, to the jury, of which the following is a reduced copy:

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Page 120 U. S. 539

A turnpike running through the tract northerly and southerly was opened in 1816. The 22 1/4-acre parcel was conveyed to Francis Richardson, of Attleboro, Massachusetts, by deed dated April 10, 1750. The land in controversy is a portion of this parcel lying west of the turnpike. The five and a half acre parcel was conveyed to Ezekiel Fuller by deed dated November 17, 1750. The six-acre parcel was conveyed to Abigail Fuller, wife of Ezekiel, and daughter of Francis Richardson, by deed dated January 21, 1756.

The plaintiff claims to derive title under the will of Francis Richardson dated May 26, 1749, and the codicil thereof dated August 10, 1750, which were admitted to probate in Massachusetts January 19, 1756. A copy of the will and codicil and of the Massachusetts probate was produced and given in evidence, together with a certificate of their having been filed and recorded in the probate office in Lincoln on the 27th of August, 1881.

It does not appear that there was any direct evidence that Francis Richardson was seized of the 22 1/4-acre parcel at the time of his death. The presumption, in the absence of any opposing circumstances, is undoubtedly that, being the owner at the date of the codicil, August 10, 1750, he continued such owner up to the time of his death, which occurred some years afterwards. Whether sufficient opposing circumstances to rebut this presumption are found in the absence of all claim to the land for three-quarters of a century by the devisee or her husband, or her heirs, and the continued claim of ownership by the ancestors in title of the defendants during that period, is a question to be hereafter considered.

It is stated in the record that there was evidence tending to show that Abigail Fuller, the devisee, and her husband entered into possession of the property devised under the will and codicil, but what that evidence was does not appear. Abigail died prior to 1766, leaving her husband surviving her. He left Smithfield sometime in 1761 "for parts unknown." It appears also that in a deed executed by him on the 11th of April, 1761, of the 20-acre lot designated on the diagram, he recited that such lot was bounded on the north by "his former land."

Page 120 U. S. 540

With the exception of the evidence tending to show that the devisee and her husband entered into possession of the property devised, and the reference by the husband in his deed to the tract as his former land, there was nothing to show that any claim of right or title to the land had been made by them or by their heirs for nearly three-quarters of a century, either by the exercise of acts of ownership over it, such as its occupation or the use of its products, or by leasing or selling it, or by the payment of taxes, or in any other way. And, for over forty years after the lapse of the three-quarters of a century, the only claim of title made by the heirs of the devisee to any portion of the 22 1/4-acre lot consisted in the fact that in 1835 they brought an action against certain persons, with whom the defendants were not in privity of title or ancestry, for the recovery of another portion of the 22 1/4-acre parcel, which action was discontinued in 1838 on account of the poverty and pecuniary inability of the heirs to carry it on, and in the fact that at varying intervals between 1826 and 1857 (not 1858, as stated in one part of the record), they had been in the habit, under such claim, of cutting wood thereon openly for family use and the manufacture of baskets, in which business some of them were engaged, and carrying it to their homes, and that on three occasions, once in 1840, once in 1845, and once in 1852, some of them, in contemplation of taking legal proceedings to establish their title, had gone around and upon the land and pointed out its boundaries.

When Ezekiel Fuller departed from Smithfield in 1761, he left two children, Francis and Abigail, without means of support, and at a meeting of the town council in September following, proceedings were taken to provide for them. In a resolution reciting that "Ezekiel is gone, we know not where," that his children were then and likely to be chargeable to the town, that little or nothing of Ezekiel's estate was to be found to support them, but that it was assumed there was some estate belonging to him, a person was appointed to make proper inquiry and search for it, "to know what land there is belonging to the family of said Ezekiel, and secure the same for the support of the children." It would seem that the person thus

Page 120 U. S. 541

appointed, reported that there was a piece of land -- a six-acre parcel -- which was possessed by Ezekiel in right of his wife, for the town council at a meeting in March, 1776, after reciting that there was nothing of said Fuller's estate left behind to maintain his children but a small piece of land, and that no provision for their support could be had without the favor and authority of the general assembly to sell and give a deed of it, appointed one Edward Mowry to lay the matter before the assembly and request that it would pass an act to enable some proper person to dispose of the parcel, and clothe him with authority to give a deed thereof. Mowry presented a proper petition to the assembly, which granted the prayer and empowered the town treasurer, with the consent and advice of the town council, to sell the land and apply the money received for the purpose stated -- that is, the support of the children. A sale of the six-acre lot for thirty pounds was accordingly made by the town treasurer under the authority thus conferred.

Abigail, the wife of Ezekiel, left five children surviving her, all of whom died before their father except Abigail, Jr., who was one of the two supported by the town. The father, who disappeared from Smithfield in 1761, died in the poor house in Attleboro, Massachusetts, in 1800. Abigail, the daughter, was born December 29, 1757, became of age, December 29, 1778, and was married to Benjamin Fuller, December 1, 1779. He died in 1832, and she died in 1835 intestate. The plaintiff is the grandson of this Abigail, and the parties for whom he is trustee are her other descendants. They all derive whatever title they have from her.

On the 24th of May, 1874, a century and eighteen years after the probate of the will of Francis Richardson, all the heirs of Abigail Fuller except one executed a power of attorney to Theodore C. Fuller, also one of said heirs, authorizing him to sell to Nathan Fuller, the plaintiff in this action, all their title and interest in the tract conveyed by James Reed to Francis Richardson by deed dated April 10, 1750, and devised to Elizabeth Fuller, wife of Ezekiel, by his last will and testament probated January 19, 1976, to hold the same upon trust to

Page 120 U. S. 542

prosecute to final conclusion legal proceedings necessary to recover possession of the premises, to employ counsel for the purpose, to conduct the proceedings, and to make such compromises of the grantors' claims as to him and his counsel might seem best. The same grantors, by their attorney, on the same day executed a deed of the same tract of land to Nathan Fuller, reciting a consideration of ten dollars, upon trusts similar to those contained in the power of attorney. Both documents were duly acknowledged by the grantors. The delivery of the deed was made by the attorney in this way: he and the grantee went upon the land with three other persons, and while upon it, he delivered the deed to the grantee. He also took up some earth in his hands, and passed it to the grantee. This he had been instructed to do by his counsel as the form of delivering possession. The parties were about fifteen minutes on the land. There was no evidence of any notice to or knowledge by the defendants of these acts, and they testified that they had neither. This is the case of the plaintiff, briefly stated.

The defendants trace their title to the land in question by continuous claim of title from a deed of the 22 1/4-acre parcel, made by one Jeremiah Richardson, a grandson of the testator, Francis Richardson, to Stephen Jencks, dated April 8, 1768, containing full covenants of title and warranty, and recorded in the records of Smithfield on July 10th following. Jeremiah Richardson was the son of Francis Richardson, who was a son of the testator, and is named in the will as having died. Jeremiah had a brother also called Francis Richardson, who died prior to March, 1766. Stephen Jencks, by deed dated August 12, 1796, containing full covenants of warranty, to secure several notes, amounting to $3,000, mortgaged the land in controversy, with adjoining lands to which he had acquired title, making in all 50 acres, of which the 20-acre lot designated on the diagram was one parcel, which he had purchased in 1763 for

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