Clymer's Lessee v. Dawkins
44 U.S. 674 (1845)

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U.S. Supreme Court

Clymer's Lessee v. Dawkins, 44 U.S. 3 How. 674 674 (1845)

Clymer's Lessee v. Dawkins

44 U.S. (3 How.) 674

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF KENTUCKY

Syllabus

A court is not bound to give instructions to the jury in the terms required by either party; it is sufficient if so much thereof are given as are applicable to the evidence before the jury and the merits of the case as presented by the parties.

The entry and possession of one tenant in common is ordinarily deemed the entry and possession of all the tenants, and this presumption will prevail in favor of all until some notorious act of ouster or adverse possession by the party so entering is brought home to the knowledge or notice of the others. When this occurs, the possession is from that period treated as adverse to the other tenants.

Such a notorious ouster or adverse possession may be by any overt act in pais of which the other tenants have due notice, or the assertion in any proceeding at law of a several and distinct claim or title. If an attempt be made to obtain a partition, although the legal proceedings by which it is effected may be invalid or defective, still, being a matter of public notoriety, the co-tenant is bound at his peril to take notice of the claim to adverse possession thus set up.

If the tenants in possession only claim the undivided interest which was held by their immediate grantors, it is not adverse to the remaining part of the title, and such persons cannot defend themselves in ejectment by giving in evidence an outstanding title elder than that under which they claim, nor can they avail themselves of the statute of limitations.

But if the occupants entered into possession and held the lands for more than twenty years before the commencement of the suit by a purchase and claim thereof in entirety and severalty, and not an undivided part thereof in cotenancy, it is an adverse possession, and the statute of limitations is a good plea.

There were three tenants in common of a tract of land in Kentucky, and the question was how far the possession of the occupiers, holding under two of the three, constituted an adverse possession against the third so as to entitle them to the benefit of the statute of limitation.

In 1806, a patent was issued by the Governor of Kentucky to George Clymer for one-third, and Charles Lynch and John Blanton for two-third of a certain tract or parcel of land, containing eleven thousand acres by survey, bearing date 30 May, 1784, lying and being in the County of Jefferson on the waters of Harrod's Creek, and bounded as follows &c.

A division of the land was made by commissioners and offered in evidence during the trial, and as the various proceedings under this commission ran through a long period of time, the whole of them will be stated before passing on to other circumstances in the history of the case.

"Henry County, the first day of January, eighteen hundred and two."

"We, William Neall and Isaac Forbes, having been appointed commissioners by the Country Court of the said County of Henry, in

Page 44 U. S. 675

conformity to an act of the General assembly of the State of Kentucky, for the purpose of making division of lands between residents and nonresidents in the said County of Henry, having been called on to divide a tract of eleven thousand acres on the waters of Harrod's Creek, in the name of George Clymer for the one-third, and Charles Lynch and John Blanton two-thirds, agreeably to a patent bearing date 24 December, in the year of our Lord, one thousand eight hundred and six, and of the Commonwealth of Kentucky the fifteenth, and signed by Christopher Greenup, the then Governor of Kentucky. It being stated to us that the said George Clymer is a nonresident, we have gone on the ground, and made the following division, to-wit: Charles Lynch and John Blanton's portion is lot No. 1, containing seven thousand three hundred and thirty-three and one-third acres, agreeably to the plat hereby laid down, which is bounded as followeth, to-wit: &c."

"No. 2, on the plat allotted to George Clymer on the division, is bounded as follows, to-wit, containing three thousand six hundred and sixty-six and two-thirds acres, beginning &c., hereby conveying and affirming the foregoing division, agreeable to the said allotment, to the said Charles Lynch and John Blanton, for the two-thirds of said eleven thousand acres, and the one-third to the said George Clymer, agreeably to the metes and bounds before described."

"Given under our hands and seals as commissioners aforesaid, the day and date first above written."

"WILL. NEALE [L.S.] Com'r"

"ISAAC FORBES [L.S.] Com'r"

"Signed, sealed, and delivered in presence of"

"Henry County court, Clerk's Office, Jan. 1, 1810"

"The within division of land was filed in my office, acknowledged by William Neale and Isaac Forbes, commissioners in said county for the division and conveyance of lands, parties thereto, as their act and deed, and admitted to record."

"ROW. THOMAS, C.C."

"Henry County, October court, 1827"

"An instrument of writing purporting to be a division of eleven thousand acres of land, in the County of Henry, between Charles Lynch, John Blanton, and George Clymer, the same being made by William Neale and Isaac Forbes, commissioners appointed for that purpose, was this day produced into court (the commissioners being absent), together with the certificate of acknowledgment, entered and attested by Rowland Thomas, Clerk. Whereupon, on motion of Charles H. Allen attorney for the parties, it is ordered that the same be now received and recorded accordingly, which was heretofore done."

"EDMD. P. THOMAS, C."

"By WILL. SHARP, D.C."

Page 44 U. S. 676

"Henry County court, Clerk's Office, Aug. 8, 1828"

"I, Edmund P. Thomas, clerk of the county court for the county aforesaid, do certify, that on the day of the date hereof, the foregoing commissioners' report of lands, together with the certificates thereon endorsed, were filed in my office and recorded."

"EDMD. P. THOMAS, C."

In 1813, George Clymer, one of the patentees, residing in Philadelphia, made his will and died. He devised his property to certain persons in trust, for the payment of certain moneys, and these to be divided amongst his children and grandchildren.

Much evidence was given in the court below to show the nature of the title and possession under which the occupants (residing entirely upon the part allotted to Lynch and Blanton) held their lands. They all claimed under Lynch and Blanton, and the following is a summary of the evidence:

It was proved that these persons entered upon and first improved, settled, and occupied, the land, and they and those claiming under them have held, claimed, and occupied, the land as their own for upwards of twenty-five years before the commencement of this suit, but no evidence was introduced by either of the defendants conducing to prove that either of them or any other person had given any express notice to the patentee, Clymer, in his lifetime, or either of the trustees named in the will of said Clymer, that they or any of them held the land adversely to the claim or right of Clymer, nor was any evidence given tending to prove that notice of any sort had ever been given to Clymer or any of the trustees named in his will by any of the defendants or any other person under whom any of them claim except the facts which the evidence did conduce to establish that the land in possession of each defendant had been taken possession of, improved, and occupied by actual residence by each defendant (or at first by him of whom he derived his possession and claim of right, and afterwards by himself) as all entirely his or their own, and not as co-tenant with Clymer or his devisees, and had been so ever afterwards held for upwards of twenty years and up to the commencement of this suit.

It did not appear by the evidence that either of the defendants or his predecessor in the possession had any knowledge or notice in fact that Clymer was a co-partner with Lynch and Blanton or had any interest in the land, and plaintiff's counsel insisted only that they were bound to know and notice the right of Clymer, apparent on the patent.

Evidence was also introduced to show that most of the defendants were within the boundary of adverse patents, elder in date than the patent to Clymer, Lynch and Blanton, and that some of them had contracted with the claimants of those elder patents, for the land in their possession, since they became possessed of it.

The suit was brought in December, 1840, by the representatives

Page 44 U. S. 677

of Clymer, against sixty-three occupants of the tract, which, as before stated, had been assigned, in the partition, to Lynch and Blanton.

Upon the trial, the plaintiff asked the court to instruct the jury:

1. That if the jury believe from the evidence that the defendants or others under whom they claim entered upon the land in contest under the claim of Clymer, Lynch and Blanton, for eleven thousand acres, that such of the defendants as the jury may find so entered, by themselves or others under whom they claim, cannot avail themselves of the elder patents read in evidence, as to defeat the plaintiff in this action.

2. That the defendants cannot defeat the plaintiff's right to recover, if the jury believe, from the evidence, the plaintiff ever had right, by reason of the statute of limitation, provided the jury believe, from the evidence, that the defendants, or those under whom they claim, entered upon the land in contest, under the title of Clymer, Lynch and Blanton, for the eleven thousand acres patented to them.

3. That if the jury find, from the evidence, that any of the defendants entered upon the land in contest, under a parol contract of purchase from the agent of Lynch and Blanton, who were tenants in common with Clymer in the eleven thousand acre patent, read in evidence, and the jury also find that such of the defendants as so purchased never notified the patentee Clymer, or the trustees named in his will and codicil, or either of them, that they held adversely to Clymer's title, that the defendants, as to whom the jury may so find, cannot avail themselves of the statute of limitation in defense of this action. Also,

4. That such defendants as the jury may find as above-mentioned, if there be any such, cannot avail themselves of the outstanding conflicting elder patents read in evidence, unless the jury further find that such defendants, in the opinion of the jury, have proved a connection with such elder patent or patents, by purchase, either made by them or others under whom they claim.

The court refused to give either instruction as asked, but instead thereof gave to the jury the following instruction:

"The court instruct the jury that if they find from the evidence that any of the defendants or those under whom they claimed entered upon the parcel of the land in controversy in their possession at the commencement of this action, under a contract, whether it was executed or executory, by parol or in writing, with the agent of Lynch and Blanton, or either of their co-grantees with Clymer, of the eleven thousand acres, by the patent read by plaintiff, or any other person claiming under that patent, whereby they purchased an individual two-thirds, or any other such part, and not the entire interest in such parcel or parcels of the land, then such defendants, or those under whom they claimed, and who had so entered, did not, by their entry into the possession, oust Clymer or his devisees of his

Page 44 U. S. 678

or their undivided third thereof, but the entry of such purchasers and their possession was for him, Clymer, or his devisees, as well as for themselves, and in the absence of all evidence of notice to Clymer or those claiming under him of a subsequent adversary holding by such occupants, their possession did not become adversary, in legal effect, to Clymer or his devisees, and no defendant, who so entered, can now avail himself of the outstanding legal title by the elder patents to be read in evidence; nor can any such defendant prevail in his defense of this action by the length of his possession, and the statute of limitation; nor can any defendant who entered, claiming the entire estate in his parcel of the land, add to the length of his own possession that of anyone under whom he claimed and had succeeded, who had so entered under a purchase of an undivided part, and was so a co-tenant with Clymer or his devisees, and thereby make out the twenty years of adversary possession within the statute."

The defendants moved the following instructions to find as in case of a nonsuit as to all the defendants:

That the plaintiff has shown title only to an undivided interest in the land, and that only one-fifteenth.

To find in favor of all the defendants whose tenements fall within the elder claims of Tuttle and Howard.

To find in favor of all whose possession existed, and continued, and have been held as their own, for twenty years before the commencement of this suit.

To find in favor of those whose possession existed and continued under Lynch and Blanton, and adverse to Clymer, for twenty years before suit brought.

To find in favor of those whose possession originated, and have been held as their own, twenty years before suit brought, under purchases from Lynch and Blanton, or either of them, after the division made under the orders of the Henry County Court.

The court refused to give either of the instructions, as moved by the defendants, but in substitution therefor gave the following instructions:

"The court instruct the jury that their verdict ought to be for each defendant who, or whose predecessor in possession, from whom he had derived his possession and claim of right, had entered on the land in his possession at the commencement of the action, twenty years before that day, by a purchase and claim thereof in severalty, all as his own, and not an undivided part in co-tenancy with Clymer or his devisees, but adversely to him or them, whether such purchase was from Lynch or Taylor, or Lynch and Blanton, or any other who had ever afterwards, up to the commencement of this suit, continued thus to hold such possession."

"To each opinion and decision of the court in refusing to give the instructions as moved by the plaintiff and each of them, and in giving

Page 44 U. S. 679

the instructions which were given by the court in substitution, or instead thereof, the plaintiff at the time excepted. Also the plaintiff excepted to the instruction which is given by the court in substitution of the instructions moved by the defendants, at the time the instruction was given, and he now excepts to each opinion and decision, and prays that this his bill of exceptions be signed, sealed, and enrolled, which is accordingly done."

"THOS. B. MONROE [L.S.]"

Page 44 U. S. 687

MR. JUSTICE STORY delivered the opinion of the Court.

This is the case of a writ of error to the Circuit Court of the District of Kentucky. The original suit was an ejectment for a certain tract of land in Kentucky containing eleven thousand acres, and upon the trial upon the general issue a verdict was found for the defendants, upon which judgment passed for them. A bill of exceptions was taken by the plaintiff to the opinions of the court at the trial, and to revise those opinions the present writ of error is brought by the plaintiff.

On 24 December, 1806, a patent for the tract of eleven thousand acres of land was granted by the Commonwealth of Kentucky, unto George Clymer, under whose will the lessors of the plaintiff make claim, one-third, and unto Charles Lynch and John Blanton, under whom the defendants make claim, two-thirds. In the year 1810, if not at an earlier period, for there is some repugnancy in the various dates stated in the record, Lynch and Blanton procured a partition of the tract to be made by the authority of the County Court of Henry by certain commissioners appointed pursuant to the Kentucky statute of 1792, by which one-third was assigned in severalty to Clymer, he being then a nonresident, by certain metes and bounds, and the remaining two-thirds were assigned to Lynch and Blanton by certain other metes and bounds. The return of the commissioners was filed, acknowledged, and admitted to record in the clerk's office of the County of Henry in 1810, but the court of that county do not seem to have ordered the return to be received and recorded until 1827. How this delay took place has not been satisfactorily explained, and the omission has been insisted upon as an objection to the validity of the partition.

All the defendants appear from the evidence to have derived title to the lands in their respective occupation and to have entered into possession of the same after the partition was made, and by titles in severalty, derived exclusively from or under Lynch and Blanton, and the lands held by them are situate exclusively within the tract assigned by the partition to Lynch and Blanton. The main defense relied upon by the defendants at the trial was an adverse possession to the title of Clymer during the period prescribed by the statute of limitations of Kentucky. To rebut this defense the plaintiff insisted that the partition was void, and being void, the defendants having entered into the land under the patent to Clymer, Lynch and Blanton, who still, notwithstanding the partition, in point of law, remained tenants in common of the land, were not at liberty to set up an adverse possession against that title, nor at liberty to set up

Page 44 U. S. 688

any outstanding superior title in any third person, under any elder patent offered in evidence, to defeat the plaintiff in the action.

The plaintiff, upon the evidence (which need not be here particularly recited), moved the court to instruct the jury as follows: [See the statement of the reporter.]

The defendants also moved the court to give certain instructions to the jury, which instructions the court refused to give, but gave the following instruction in substitution thereof: [See statement].

To the instructions so refused as propounded by the plaintiff, and to the several instructions so given by the court, the plaintiff excepted, and the cause stands before us for consideration upon the validity of these exceptions.

The first point made at the argument for the plaintiff is as to the validity of the partition under the proceedings in the County of Henry. In our judgment, it is wholly unnecessary to decide whether those proceedings were absolutely void or not, for assuming them to have been defective or invalid, still, as they were matter of public notoriety of which Clymer was bound at his peril to take notice, and as Lynch and Blanton, under those proceedings, claimed an exclusive title to the land assigned to them adversely to Clymer, if the defendants entered under that exclusive title, the possession must be deemed adverse in point of law to that of Clymer.

And this leads us to the consideration of the instructions actually given by the court, which cover the whole ground in controversy and, if correct in point of law, show that the court rightly refused to give the instructions asked by the plaintiff, so far as they were not consistent with the instructions actually given. It is very clear that the court is not bound to give instructions in the terms required by either party, but it is sufficient if so much thereof are given as are applicable to the evidence before the jury and the merits of the case as presented by the parties.

The first instruction given by the court is as favorable to the plaintiff in all its bearings as the law either justifies or requires, and is in direct response to the substance of some of the instructions asked by the plaintiff. It in substance states that if the defendants entered under the title of Clymer, Lynch and Blanton as tenants in common, and did not claim any title except to two-thirds of the parcels of land respectively held by them, and not to the entirety thereof, then their entry into the possession did not oust either Clymer or his devisees of his or their undivided third part, and was not adverse thereto, and that the defendants so entering could not avail themselves of the defense of the statute of limitations, and they could not avail themselves of the outstanding legal title of third persons by any elder patent. So far as this instruction goes, it is manifest that it was favorable to the plaintiff, and indeed it is not now per se objected to, but the objection is that it does not go far enough, and thus was to the prejudice of the plaintiff.

Page 44 U. S. 689

The real point in controversy turns upon the second instruction given by the court, in answer to the prayer of the defendants. That instruction in substance states that if any of the defendant entered into possession of the lands respectively claimed by them, and held the same for more than twenty years before the commencement of the suit by a purchase and claim thereof in entirety and severalty, and not for an undivided part thereof, in co-tenancy with Clymer or his devisees, but adversely to them, then such defendant was entitled to a verdict in his favor, whether he held by a purchase from Lynch, or Blanton, or any other person who had ever afterwards, up to the commencement of the suit, continued thus to hold the possession. We see no objection to this instruction, which ought to prevail in favor of the plaintiff; on the contrary, we deem it entirely correct and consonant to the principles of law upon this subject.

It is true that the entry and possession of one tenant in common of and into the land held in common is ordinarily deemed the entry and possession of all the tenants, and this presumption will prevail in favor of all until some notorious act of ouster or adverse possession by the party so entering into possession is brought home to the knowledge or notice of the others. When this occurs, the possession is from that period treated as adverse to the other tenants, and it will afterwards be as operative against them, as if the party had entered under an adverse title. Now such a notorious ouster or adverse possession may be by any overt act in pais, of which the other tenants have due notice, or by the assertion in any proceeding at law of a several and distinct claim or title to an entirety of the whole land, or, as in the present case, of a several and distinct title to the entirety of the whole of the tenant's purparty under a partition, which, in contemplation of law, is known to the other tenants. Upon so familiar a doctrine it scarcely seems necessary to cite any authorities. So early as Townsend and Pastor's Case, 4 Leon. 52, it was holden in the Common Pleas by all the justices that where there are two co-parceners of a manor, if one enters and makes a feoffment in fee of the whole manor, this feoffment not only passes the moiety of such co-parcener, which she might lawfully part with, but also the other moiety of the other co-parcener by disseisin. This decision was fully confirmed and acted on in the recent case of Doe d. of Reed v. Taylor, 5 Barn. & Ad. 575, where the true distinction was stated that although the general rule is that where several persons have a right, and one of them enters generally, it shall be an entry for all, for the entry generally shall always be taken according to right; yet that any overt act or conveyance, by which the party entering or conveying asserted a title to the entirety, would amount to a disseisin of the other parties, whether joint tenants or tenants in common or parceners. Upon the same ground it was held in New York in the case of Jackson v. Smith, 13 Johns. 406, that a conveyance made by one tenant in common of the entire

Page 44 U. S. 690

fee of the land, and an entry and possession by the purchaser under that deed is an adverse possession to all the other tenants in common. To the same effect is the case of Bigelow v. Jones, 10 Pick. 161. The reason of both these latter cases is precisely the same as in the case of a feoffment, the notoriety of the entry and possession, under an adverse title, to the entirety of the land.

Similar principles have been repeatedly recognized in this Court. In McClung v. Ross, 5 Wheat. 116, 18 U. S. 124, the Court said

"That one tenant in common may oust another, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster or give notice to his co-tenant that his possession is adverse ought not, we think, to be construed into an adverse possession."

In the case of Lessee of Clarke v. Courtney, 5 Pet. 319, 30 U. S. 354, this Court also held that where a person enters into land under a deed or title, his possession (in the absence of all other qualifying or controlling circumstances) is construed to be co-extensive with his deed or title, and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseized to the extent of the boundaries of such deed or title. This doctrine is strongly applicable to the possession under the partition in the present case. There are several other cases affirming the same doctrine, and especially Green v. Liter, 8 Cranch 229, 12 U. S. 230; Barr v. Gratz, 4 Wheat. 213, 17 U. S. 223; and Society for Propagating the Gospel v. Town of Pawlet, 4 Pet. 480, 29 U. S. 504, 29 U. S. 506. The doctrine has been carried by this Court one step farther, but at the same time one which is entirely consistent with the principles on which the general rule and the exceptions to it are founded. In Blight's Lessee v. Rochester, 7 Wheat. 535, 20 U. S. 549-550, it was held that in cases of vendor and purchaser, although the latter claimed his title under or through the former, yet as between themselves, the possession of the purchaser under the sale, where it was absolute and unconditional, was adverse to that of the vendor, and he might protect that possession by the purchase of any other title or by insisting upon the invalidity of the title of the vendor, as the foundation of any suit against him. Now upon this last ground, the defendants were certainly at full liberty as absolute purchasers in fee to maintain their adverse possession to the land and the bar of the statute of limitations against Lynch and Blanton, and a fortiori against Clymer.

Upon the whole, we are entirely satisfied that the second instruction given by the court was correct in point of law, and therefore the judgment of the circuit court ought to be

Affirmed with costs.

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