In this action of ejectment, the evidence of adverse possession
contained in the bill of exceptions and set forth in the opinion of
this Court is sufficient to justify the action of the trial court
in submitting the question to the jury.
By the terms of the statute in force in the District of
Columbia, the time of limitation of this action commenced to run
against Lucy T. Davis, one of the plaintiffs in error, on the death
of her mother, and as her mother's death took place more than ten
years after the cause of action accrued, the term against the
plaintiff in error expired in ten years after it accrued, and no
disability on her part arrested its running.
It is the general practice to permit tenants in common to sue
jointly or separately in ejectment, but if they sue jointly, it is
with the risk of the failure of all if one of them fails to make
out a title or right to possession.
When a cross-examination is directed to matters not inquired
about in the principal examination, its course and extent are very
largely subject to the control of the court in the exercise of a
sound discretion, and the exercise of that discretion is not
reviewable on a writ of error.
The plaintiff requested the following instruction:
"The jury are instructed that there is no testimony in this case
tending to rebut the testimony of the witness John H. Walter that
he never conveyed lot 10, in controversy in this case, to any
person other than the conveyance by the deed to plaintiffs Charles
M. N. Latimer, Lucy T. Davis
and others, and the jury would not
be justified in finding to the contrary."
The court struck out the words in italics, and inserted instead,
"and the weight to be given his testimony is a proper question for
the jury."
Held that this was not error.
The statement of the case will be found in the opinion of
the Court.
Page 174 U. S. 720
MR. JUSTICE McKENNA delivered the opinion of the Court.
The is an action of ejectment brought by the plaintiffs in error
and one Charles M. N. Latimer against the defendants in error for
99/100 undivided part of original lot 10, in square 1031, in the
City of Washington, D.C.
The declaration was in the usual form, and defendants pleaded
not guilty, on which issue was joined.
The plaintiffs derive title from Richard Young as heirs at law
or grantees of heirs at law. The defendants claim by adverse
possession under claim of title under an execution sale upon a
judgment recovered against said Richard Young some time in the year
1826.
The case was tried by a jury. Before the case was submitted,
leave was granted to amend the declaration by striking out
plaintiffs Charles M. N. Latimer and William W. Boarman. The
verdict was for defendants, and, after a motion for new trial was
made and denied, judgment was entered in accordance therewith. The
plaintiffs appealed to the Court of Appeals, where the judgment was
affirmed, and the case was brought here.
There are 11 assignments of error in plaintiffs' brief. All but
three relate to instructions given or refused or modified
concerning adverse possession. The plaintiffs contended for or
objected to instructions which submitted the question of adverse
possession to the jury. The other assignments of error will be
noted hereafter.
1. The evidence of adverse possession contained in the bill of
exceptions is as follows:
"The defendants thereupon further offered evidence tending to
prove that, on March 8, 1875, Isaac P. Childs, and
Page 174 U. S. 721
grantee of the whole of square 1031, under a deed from Alexander
R. Shepherd bearing date the 22d day of February, 1875, the same
being one of the chain of conveyances offered in evidence by the
plaintiffs as tending to show a common source of title, took
possession of the whole of said square, converted it into a
brickyard, and continued to hold and use it as such, openly,
notoriously, exclusively, continuously, and in a manner hostile to
all the world until January, 1892, when he and his immediate
grantees sold and conveyed the said square as an entirety to the
defendants for sixty-seven thousand dollars, of which thirty
thousand was paid in cash, and thirty-seven thousand dollars,
deferred purchase money, was secured upon the ground by a deed of
trust, upon which the defendants have ever since paid the interest;
that, by the terms of the sale, said Childs & Sons were to be
allowed until February, 1893, to remove from said square; that they
continued in occupation and possession of the whole of said square
under said defendants paying rent therefor, down to the month of
October, 1893, with the consent of said defendants, and that they
held said square for some time after October without the consent of
the defendants, but not disputing their title, being tenants
holding over; that they removed the greater part of their effects
from said square in the late fall or early winter of 1893-94, but
did not remove entirely until about the month of May, 1895; that
the first structure placed by them on the square when they took
possession, in 1875, were two or more brick kilns erected on lot
10, and that these kilns were the last from which the brick were
removed when they left; that these brick were in process of removal
along during the winter of 1893-94, and that a part of the
machinery used by them in the making of brick -- namely, two large
rollers, with which the clay was crushed before being made into
brick -- were not removed until May, 1895; that these rollers and
some machinery were hauled away in two four-horse wagons as late as
about May 20, 1895; that the machine house was located on the north
part of lot 1, in said square at or about a point indicated by the
witness Charles Childs on a plat of the square exhibited to
Page 174 U. S. 722
the jury, and that the rollers and machinery were north of the
machine house, and on cross-examination in regard thereto, the said
Charles Childs testified as follows:"
"I don't know but what the rollers might have been on lot 10.
The machine house stood right in here (indicating), and the rollers
might have been on lot 10."
"The defendants further offered testimony tending to show that,
in November, 1893, the defendants caused four signs to be posted,
each about four feet square, to the effect that the entire square
was for sale or rent on application to them, one at each corner of
the square, one of them being located on lot 10; that some of the
old brick were left on the ground, which the witness thought Childs
& Sons abandoned, but they did not charge defendants for them,
which were suitable for use in building, and were still there; that
defendants made no use of them, but that witness thought they would
have used them if they had gone into building operations; that
either in the latter part of March or the first part of April,
1894, the defendants rented the entire square to one John, A.
Downing, who rented it for the purpose of converting it into a
baseball park, but did not use it for that purpose; that he
occupied the house which was on lot 7 for a dairy lunch, and sublet
a portion of said house for a barber shop; that the acts he did in
reference to the occupation of the vacant ground in that square
were as follows: that he prevented various parties from depositing
tools, tool boxes, and railroad iron on the square, though none was
attempted to be deposited on lot 10; that, on the said square there
were a couple of holes where the brick kilns had existed, and that
there are the foundations of some kilns built of brick still there,
and that the said Downing remained as such tenant in occupation of
the said square, as aforesaid, until June, 1895, when he sold his
dairy lunch to a Mrs. Schulz, who took possession the same day;
that, after Isaac Childs & Sons left the square, which was in
the winter of 1893-94, perhaps along in November, December,
January, and February, they sold certain brick kilns, some of which
were on lot 10, to James D. Childs, who in turn sold them to
others, by whom they were taken away; that said James D. Childs
did
Page 174 U. S. 723
not claim the land said bricks were on; that Mrs. Schulz
continued in occupation of the property from June, 1895, down to
the time of the trial; that she rented the house with the privilege
of using the entire square, provided she neither placed nor
permitted others to place anything unlawful upon it, and that she
had stopped parties from dumping earth upon the square and from
driving across it, though she made no use of it herself."
"The defendants thereupon produced as a witness in their behalf
Goff A. Hall, assistant assessor of the District of Columbia, who
gave testimony tending to prove that he had examined the tax books
from 1875 down to the time of the trial and that, throughout that
period, the taxes on said lot 10 had been assessed and paid in the
name of the defendants and those under whom they claimed."
"Thereupon the plaintiffs in rebuttal gave testimony tending to
prove that the brickyard was established some time in the fall of
the year 1875, and disappeared some time in 1893, leaving nothing
remaining but the remnants of the old brickyard, and that the
bricks were all removed from the kilns about March or April,
1894."
We think the evidence was sufficient to justify the action of
the court in submitting the question to the jury, and the
exceptions based on such action were not well taken.
2. Did the adverse possession apply to the title derived by the
plaintiff Lucy T. Davis from her mother, Tracenia Latimer, and to
the title of the plaintiff Millard P. McCormick, derived from his
mother, Elizabeth McCormick?
It is one of the contentions of the plaintiffs that it did not
apply to those titles, and error is based on a refusal of the court
to so instruct the jury. The adverse possession began February 22,
1875. The suit was brought May 17, 1895. There were therefore
twenty years and a few months adverse possession. Richard Young,
the common source of title, died in 1860, testate. His will in
effect devised the property in controversy to Matilda, his wife,
for life, remainder to Tracenia and Elizabeth and other children.
Both were then married. Their mother, the life tenant, died October
7, 1874. Tracenia
Page 174 U. S. 724
died November 17, 1879, and her husband April 20, 1880. She left
two children, one of whom is the plaintiff Davis. Elizabeth died
March 22, 1889. Her husband survived her, but died July 2, 1891.
October 14, 1887, she and her husband conveyed their interests to
their son, the plaintiff Millard P. McCormick. From the death of
Elizabeth and her husband, five and four years, respectively,
elapsed before suit, and from the date of the conveyance to
Millard, over eight years. Assuming that Tracenia Latimer and
Elizabeth McCormick were under disability when the adverse
possession commenced, did that possession ever run against their
interests, and, if so, when did it commence to run?
The statute of limitations in force in the District is that of
James I. c. 16. Under that statute, no suit for lands can be
maintained except "within twenty years next after the cause of
action first descended or fallen, and at no time after the said
twenty years." Additional time is given to those under disability,
as follows:
"That if any person . . . shall at the time of said right or
title of entry be or shall be at the time of the said right or
title first descended, accrued, come or fallen within the age of
twenty-one years,
feme covert, non compos mentis,
imprisoned, that then such person and persons, and his and their
heir and heirs, shall or may, notwithstanding the said twenty years
be expired, bring his action, or make his entry as he might have
done before this act; (2) so as such person and persons, or his or
their heir and heirs, shall within ten years next after his and
their full age, discoverture, coming of sound mind, enlargement out
of prison, or death, take benefit of, and sue forth the same, and
at on time after the said ten years."
(Sec. 2, p. 359, Compiled Stat.Dist.Columbia.)
More than twenty years elapsed after Tracenia's right accrued,
as we have seen, before suit was commenced, and more than ten years
of that time accrued after her death and that of her husband. She
died under disability, but that made no difference. By the terms of
the statute, the time of limitation of suit commenced to run upon
her death against her heir, Lucy T. Davis, and expired in ten
years. No disability
Page 174 U. S. 725
of Lucy T. Davis, if she was under any, arrested the running of
the statute. Cumulative disabilities cannot be used to that effect.
Thorp v.
Raymond, 16 How. 247;
Demorest v. Wynkoop,
3 Johns.Ch. 129;
Smith v Burtes, 9 Johns. 174;
Jackson
v. Johnson, 5 Cow. 74;
Walden v. Gratz's
Heirs, 1 Wheat. 292;
Hogan v. Kurtz,
94 U. S. 773;
Mercer's Lessee v.
Selden, 1 How. 37;
McDonald v. Hovey,
110 U. S. 619.
The bar of the statute was therefore complete against her. But
it was not complete against Millard McCormick. Ten years of the
period of adverse possession had not run after the death of his
parents or after the conveyance to him and before suit was
commenced, and we are brought to the contention that a verdict
should have been rendered for him. Passing on and disposing of the
contention adversely, Mr. Justice Shepard, speaking for the Court
of Appeals, said:
"The rule is old and well established that if one plaintiff in a
joint action of ejectment cannot recover, his co-plaintiffs cannot.
Morris v. Wheat, 8 App.D.C. 379, 385. Hard as this rule
may seem to be, it was followed in that case in obedience to the
decision of the Supreme Court of the United States in
Marsteller v. McLean, 7
Cranch 156,
11 U. S. 159. In that case, Mr.
Justice Story said: 'It seems to be a settled rule that all the
plaintiffs in a suit must be competent to sue; otherwise, the
action cannot be supported.' And again: 'When once the statute runs
against one of two parties entitled to a joint action, it operates
as a bar to such joint action.'
See
also Shipp v.
Miller, 2 Wheat. 316,
15 U. S.
324;
Dickey v. Armstrong, 1 A. K. Marshall 39,
40."
"There has been no legislation affecting the rule of practice in
the District of Columbia, and we do not consider it within our
province to make a change therein."
"The apparent hardship to this plaintiff might have been avoided
by a separate suit on his own behalf."
"The original rule at common law was that tenants in common
could only sue separately because they were separately seised, and
there was no privity of estate between them.
Page 174 U. S. 726
Mobiley v. Brunner, 59 Pa.St. 481;
Corbin v.
Cannon, 31 Miss. 570, 572;
May v. Slade, 24 Tex. 205,
507; 4 Kent Com. 368."
"The practice soon became general, however, in the United
States, to permit them to sue each other jointly or severally, as
they might elect. 7 Enc.Pl. & Prac. 316, and cases cited. This
seems to have been the practice in the District of Columbia, and,
so far as we are advised, has never been questioned. Tenants in
common may join in an action if they prefer to do so, but it is
with the risk of the failure of all if one of them fail to make out
a title or right to possession."
These remarks express the rule correctly.
It was urged at the argument by defendants in error, though not
claimed in their brief, that neither Tracenia Latimer nor Elizabeth
McCormick were under disability at any time during the period of
adverse possession. The argument was that, by the Married Woman's
Act of April 10, 1860, c. 23, 14 Stat. 45, they were given the same
remedies in regard to their property that they would have had if
unmarried.
The contention presents an interesting question, and maybe
involves the further one whether their husbands ever became tenants
by the curtesy. But we need not pass on them. Assuming the
disability of Tracenia and Elizabeth and such tenancy, the errors
assigned on the instructions given or refused were not well
taken.
3. There was introduced in evidence, as part of the chain of
title of the plaintiff Lucy T. Davis, a deed from her to John H.
Walter and a reconveyance from him to her. From the latter was
excepted
"so much of all the lands and tenements above mentioned as had
been conveyed to the party of the first part (Walter) to other
persons prior to the filing of a bill in equity cause 11,637 of the
Supreme Court of the District of Columbia."
Walter was called as a witness by plaintiffs, and testified that
such reconveyance was the only one he had made of lot 10 -- the lot
in controversy. Thereupon defendants' counsel cross-examined him at
great length, against the objection of plaintiffs,
Page 174 U. S. 727
regarding his business of buying and selling real estate and the
extent of it and character. The ruling of the court permitting the
cross-examination is assigned as error. We see no error in it. The
question of plaintiffs' counsel was a general one, and opened many
things to particular inquiry. The extent and manner of that inquiry
was necessarily within the discretion of the court, even though it
extended to matters not connected with the examination in chief. In
Rea v.
Missouri, 17 Wall. 532, it was said:
"When the cross-examination is directed to matters not inquired
about in the principal examination, its course and extent is very
largely subject to the control of the court in the exercise of a
sound discretion, and the exercise of that discretion is not
reviewable on a writ of error."
It is also objected that Walter was subjected to discriminating
remarks by the court. Plaintiffs requested the following
instruction:
"The jury are instructed that there is no testimony in this case
tending to rebut the testimony of the witness John H. Walter that
he never conveyed lot 10 in controversy in this case to any person
other than the conveyance by the deed to plaintiffs Charles M. N.
Latimer, Lucy T. Davis,
and others, and the jury would not be
justified in finding to the contrary."
The court struck out the words in italics, and inserted instead
"and the weight to be given his testimony is a proper question for
the jury."
The instruction as requested assumed the credibility of the
witness; as modified, that question was submitted to the jury, who
were the judges of it, and we cannot suppose that the jury
misunderstood the court or believed a discrimination was
intended.
To the other assignments of error, special consideration is not
necessary to be given.
Judgment affirmed.