By a statute of Kentucky passed in 1796, several defendants, who
claim separate tracts of land from distinct sources of title, may
be joined in the same suit.
The statute of limitations of Kentucky, under which adverse
possession of land maybe set up, prescribes the limitation of
twenty years within which suit must be brought, and provides
"That if any person or persons entitled to such writ or writs or
title of entry shall be or were under the age of twenty-one years,
feme covert, non compos mentis, imprisoned, or not within
the commonwealth at the time such right accrued or came to them,
every such person, his or her heirs, shall and may, notwithstanding
the said twenty years are or shall be expired, bring or maintain
his action or make his entry within ten years, next after such
disabilities removed or death of the person so disabled, and not
afterwards."
The entries on the register of burials of Christ's Church, St.
Peter's and St. James' in Philadelphia and the entries of the death
of the members of the family in a family bible are evidence in an
action for the recovery of land in Kentucky to prove the period of
the decease of the person named therein.
The statute of limitations of Kentucky is a bar to the claims of
an heir to a nonresident patentee holding under a grant from the
State of Kentucky founded on warrants issued out of the land office
of Virginia prior to the separation of Kentucky from Virginia if
possession has been taken in the lifetime of the patentee. Had the
land descended to the heirs before a cause of action existed by an
adverse possession, the statute could not operate against them
until they came within the state. If adverse possession commences
prior to the decease of the nonresident patentee, his heirs are
limited to ten years from the time of the decease of their ancestor
for the assertion of their claim.
That a statute of limitations may be set up in defense in
equity, as well as at law, is a principle well settled.
Statutes of limitations have been emphatically and justly
denominated statutes of repose. The best interests of society
require that causes of action should not be deferred an
unreasonable time. This remark is peculiarly applicable to land
titles. Nothing so much retards the growth and prosperity of a
country as insecurity of titles to real estate. Labor is paralyzed
when the enjoyment of its fruits is uncertain, and litigation
without limit produces ruinous consequences to the individuals. The
Legislature of Kentucky has therefore wisely provided that unless
suits for the recovery of land shall be brought within a limited
period, they shall be barred by an adverse possession.
Page 30 U. S. 471
The appellants claimed in their bill under the heirs of Charles
Willing, deceased, a tract of land in the State of Kentucky by
virtue of certain entries made in the lifetime of Charles Willing
with the proper surveyor on 27 December, 1783, and amended on 11
and 12 March, 1784, and carried into grant by virtue of legal and
valid surveys. This entry was averred to be good and valid. The
patent was dated thirty years before the filing of the bill.
The bill states that Thomas Barbor had, by and under a void
entry, obtained the legal title, elder in date, to the title held
by Charles Willing to a large portion of the land included in the
patent to Charles Willing, and that the defendants had become
vested with the title to the whole or parts of the land patented to
Barbor and are in possession of the same. It prays that those who
hold the said land under the elder legal title of Barbor may be
decreed to convey the same to them, and for general relief.
The defendants, in their answer, resist the equity asserted by
the complainants and assert that the entries of Charles Willing
were void. They set up in addition to the entry of Barbor other
claims and entries under which they, other than Marshall and
Fowler, originally settled and held.
The validity of all that enters was denied by the complainants.
These defendants rely upon twenty years' adverse possession prior
to the commencement of the suit.
Humphrey Marshall resisted the equity claimed in the bill and
asserted in himself a previously acquired title to 12,313 acres,
part of the land in contest, under an entry in the name of Isaac
Halbert. That he afterwards acquired from John Fowler an interest
in Barbor's patent, exhibiting evidence of this asserted title.
He states that for a valuable consideration he had sold and
conveyed, under Barbor's title, certain portions of land to his
co-defendants, and exhibited the deeds showing the extent of the
same and of the possession of each under the claim of Barbor. That
these defendants were found by him in possession under claims
adverse to Barbor's, and he compromised with them and gave them
conveyances.
Page 30 U. S. 472
Thomas Barbor, on 23 September, 1804, conveyed the 4,530 acres
patented by him to John Fowler.
In 1813, Halbert conveyed his title to H. Marshall. Neither
Fowler or Marshall at these dates was in possession of any part of
the land under either title, nor has either of them ever been in
possession of any part of the interference.
In 1819, Marshall and Fowler entered into a contract by which
Marshall was authorized to sell and convey to persons in possession
the title of Barbor.
In support of the heirship of the complainants as the heirs of
Charles Willing, the patentee, a deposition of William Jackson was
taken, who deposed that he was acquainted with Charles Willing,
late of Pennsylvania, and that he died in 1798; that Thomas
Willing, Richard Willing, Elizabeth Willing, and George C. Willing
were his only children and heirs. Also the deposition of A. G.
Bird, the clerk of Christ's Church in Philadelphia, who swore that
he has the register book of burials of said church, and copies from
said book, an entry which is authenticated, and reads as follows:
"Burial in Christ's Churchyard, 23 March, 1788, Charles
Willing."
Richard Willing, of the City of Philadelphia, deposed that he
has the family Bible of his father, Thomas Willing, who, he swears,
was very particular in entering the names of the births, marriages
and deaths of his, the said Thomas' brothers and sisters, and that
in said Bible is the following entry or record: "Charles Willing,
son of Charles and Ann Willing, died at Coventry farm, 23 March,
1788, and was interred in Christ's Churchyard."
The circuit court dismissed the bill, principally on the ground
that the statute of limitations of the State of Kentucky, as
applied to courts of equity, barred the claim of the
complainants
The complainants appealed to this Court.
Page 30 U. S. 473
MR. JUSTICE McLEAN delivered the opinion of the Court.
In their bill the complainants charge that Charles Willing,
under whom they claim, in his lifetime made an entry with the
proper surveyor and on 27 December, 1783, and amended the same on
11 and 12 March, 1784, for 32,000 acres of land on certain Treasury
warrants beginning 1280 poles south west of the Lower Blue Licks,
&c., which entry
Page 30 U. S. 474
is alleged to be valid and was carried into grant after a legal
survey had been made.
The bill further states that Thomas Barbor had, by virtue of a
void entry, obtained the legal title elder in date than the patent
to Willing for a part of the land covered by Willing's entry,
survey, and patent, and that the defendants are in possession of
the land and claim title to it under Barbor's patent and other
claims. A release of their title is prayed, &c.
The defendants in their answer insist that Willing's entry is
void, and other claims than Barbor's are asserted under which the
defendants, except Marshall and Fowler, originally settled.
Marshall sets up a title in himself of elder date under an entry
in the name of Isaac Halbert for 12,311 acres. That he afterwards
purchased an interest in Barbor's patent from Fowler and conveyed
to his co-defendants. These deeds were executed several years
before the commencement of this suit.
The entries under which the defendants claim are some, if not
all, of prior date to Willing's, but their validity is contested by
the complainants. In defense, an adverse possession of twenty years
before the commencement of this suit is relied on.
By the pleadings, the validity of the complainants' entry is
involved, and also those under which the defendants claim. If
Willing's entry should be held good, it might then be important to
examine into the validity of the defendants' entry, which are of
prior date. But if Willing's entry should be held bad, there would
be an end to the controversy, as Barbor's patent, under which the
defendants claim, is older than Willing's. If the title by adverse
possession shall be sustained as to all the defendants, no inquiry
need be made into the validity of the respective entries.
No exception is taken to joining several defendants in the same
suit, who claim separate tracts of land from distinct sources of
title. This is allowed by a statute of Kentucky passed in 1796
which was designed to lessen the expense of litigation. The statute
under which the adverse possession is set up prescribes the
limitation of twenty years, within which
Page 30 U. S. 475
suit must be brought, and provides
"That if any person or persons entitled to such writ or writs,
or such title of entry, as aforesaid, shall be or were under the
age of twenty-one years,
feme covert, non compos mentis,
imprisoned or not within the commonwealth at the time such right or
title accrued or coming to them, every such person, his or her
heirs shall and may, notwithstanding the said twenty years are or
shall be expired, bring or maintain his action or make his entry
within ten years next after such disabilities removed, or death of
the person so disabled, and not afterwards."
It is not pretended that the ancestor of the complainants was
ever within the State of Kentucky after possession of the land in
controversy was taken by any of the defendants; consequently, had
he lived and prosecuted his action, the statute could not bar his
recovery. But his representatives, in asserting their right, must
bring themselves within the limitation of ten years from the time
of his decease if the adverse possession were taken prior to that
period. It is therefore important to ascertain the time of Charles
Willing's death. To prove this, the following extract from the
register book of burials in Christ Church, St. Peter's, and St.
James in Philadelphia is read as evidence: "Burial in Christ
Churchyard, March 23, 1788, Charles Willing." Signed, Albert G.
Bird, clerk, and duly certified by the bishop, &c. The clerk
testifies that the extract is truly copied from the original
register book of burials.
Richard Willing, a witness, also states that he is in possession
of a family Bible kept by his deceased father, Thomas Willing,
Esquire, who was very particular in making entries of the births,
marriages, and deaths of all his brothers and sisters and their
children, and that the following entry is found in the book, in the
handwriting of his father: "Charles Willing, son of Charles and Ann
Willing, died at Coventry Farm, 22 March, 1788, and was interred in
Christ Church ground."
William Jackson, of Philadelphia, being sworn, states that he
was acquainted with Charles Willing, late of the State of
Pennsylvania, and that he died sometime in the year 1798, leaving,
by his first wife, Thomas Willing, Richard Willing, and
Page 30 U. S. 476
Eliza M. Willing, and by his second wife, George C. Willing, his
only children and heirs at law.
If the ancestor of the complainants died in 1788, it is admitted
that the adverse possession cannot bar the recovery, as possession
was not taken by any of the defendants until after that period.
The entries in the register of burials and in the family Bible
are admissible evidence in a case like the present, and if there
were no other proof of the death of Charles Willing, the ancestor
of the complainants, they might be considered as showing his death
in 1788. But the deposition of Jackson, who was acquainted with
Charles Willing, shows that he died in 1798, and he is identified
as the ancestor by the names of his children, stated by the
witness. This statement is not contradictory to the entry in the
register or in the family Bible. There must have been two persons
named Charles Willing who died at the periods stated, but the
latter was the person in whose name the title set up by the
complainants originated.
To bring the defense within the statute of limitations, it must
appear that possession of the land was taken by the defendants in
the lifetime of Charles Willing. Had the land descended to him
heirs before a cause of action existed, by an adverse possession,
the statute could not operate against them until they came within
the state. But it appears in this case that the adverse possession
commenced prior to the decease of Willing, and consequently his
heirs were limited to ten years from that time for the operation of
their claim. This was not done.
By the testimony, an adverse possession by the defendants and
those under whom they claim, except Marshall, for more than twenty
years before the commencement of this suit is clearly shown. John
Fowler, one of the defendants, though served with process, did not
answer the bill, and no decree
pro confesso, was taken
against him in the circuit court. Humphrey Marshall, another
defendant, who answered the bill, sets up adverse possession
specifically in himself. It appears from his answer that he
conveyed, long before the commencement of the suit, to his
co-defendants. He
Page 30 U. S. 477
conveyed to them by deeds in fee simple, "with covenants to
refund the purchase money, in case of loss by any adverse claims,"
which gives to him, as he alleges his in his answer, a right to
defend in this suit.
That a statute of limitations may be set up in defense in
equity, as well as at law, is a principle well settled. It is not
controverted by the counsel for the complainants. But he insists
that the statute did not operate against the complainant's title as
to the defendants in possession until they acquired Barbor's
title.
The defendants entered under titles adverse to that claimed by
the complainants. It is not in this view a question whether these
titles were paramount to the complainants', in equity or at law.
They were adverse and within the provisions of the statute, and if
the limitation had run before the commencement of this suit, the
right of entry was tolled, and no relief can be given in
chancery.
Whatever may have been the state of the title as it regards the
defendants, it is difficult to conceive how the complainants could
have a right which they were unable to enforce. If the elder patent
vested in Barbor the legal title, and might have been set up by the
defendants before they claimed under it to defeat an action of
ejectment brought by the complainants, they might have sought
relief in a court of chancery. Their entry was made prior to the
emanation of Barbor's grant; consequently they had the right to
contest the validity of his entry.
The limitation act of 1809, which requires suit to be brought
within seven years after an adverse possession commences under a
connected title in law or equity from the commonwealth, would
protect the possession of the defendants. The facts of the case
bring them within the provisions of this act, but it has not bee
set up in the answers nor relied on in the argument.
statutes of limitations have been emphatically and justly
denominated statutes of repose. The best interests of society
require that causes of action should not be deferred an
unreasonable time. This remark is peculiarly applicable to land
titles. Nothing so much retards the growth and prosperity of a
country as insecurity of titles to real estate. Labor is
Page 30 U. S. 478
paralyzed where the enjoyment of its fruits is uncertain, and
litigation without limit produces ruinous consequences to
individuals. The Legislature of Kentucky has therefore wisely
provided that unless suits for the recovery of land shall be
brought within a limited period, they shall be barred by an adverse
possession.
The Court is of the opinion that the defendants, except
Marshall, having brought themselves within the provisions of the
act of 1796 in showing an adverse possession of more than twenty
years before the commencement of this suit have sustained their
defense, and consequently that the bill of the complainants as to
them must be dismissed.
As the extent of the interference of Marshall's claim under the
patents of Barbor and Halbert and others, with Willing's entry,
does not appear from the proof in the cause, and as such proof is
essential to enable the court to determine on the respective rights
to the parties, the cause may be certified to the court below as to
him for further proceedings.
Fowler, one of the defendants, has not answered the bill; the
merits of his claim cannot now be investigated. The cause as to him
also may be sent down for further proceedings.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky and was argued by counsel, on consideration whereof it is
ordered, adjudged, and decreed by this Court that the decree of the
said circuit court in this cause be and the same is hereby affirmed
as to all the respondents and appellees except Humphrey Marshall
and Fowler, and as to him, the said Marshall, it is adjudged and
decreed by this Court that the decree of the said circuit court be
and the same is hereby reversed and that this cause be and the same
is hereby remanded to the said circuit court for further
proceedings to be had therein as to the said Humphrey Marshall
according to law and justice and in conformity to the opinion and
decree of this Court, and it is further adjudged and decreed by
this Court that this cause be and the same is hereby remanded to
the said circuit court for further proceedings to be had therein as
to the said defendant Fowler, who did not answer the bill, and
against whom there was no decree.
