The eighth section of the statute of limitations of Pennsylvania
fixes the limitation of twenty-one years as taking away the right
of entry on lands, and the ninth section provides that if any
person or persons having such right or title be or shall be, at the
time such right or title first descended or accrued, within the age
of twenty-one years,
femes coverts, &c., then such
person or persons and the heir or heirs of such person or persons
shall and may, notwithstanding the said twenty-one years be
expired, bring his or their action, or make his or their entry,
&c., within ten years after attaining full age, &c. The
defendant in error was born in 1791, and was twenty-one years of
age in 1812. An interest in the property for which this ejectment
was brought descended to her in 1799. The title of the plaintiff in
error commenced on 13 April, 1805, under deeds adverse to the title
of the defendant in error, and all others holding possession of the
property under the same. On 13 April, 1826, twenty-one years
prescribed by the statute of limitations for a right of entry
against her possession expired, and the bar was complete at that
time, as more than ten years had run from the time the defendant in
error became of full age. This suit was not commenced until May,
1830.
This Court has frequently remonstrated against the practice of
spreading the charge of the judge at length upon the record,
instead of the points excepted to, as productive of no good, but
much inconvenience.
It is an admitted principle that a court of law has concurrent
jurisdiction with a court of chancery in cases of fraud. But when
matters alleged to be fraudulent are investigated in a court of
law, it is the province of a jury to find the facts and determine
their character.
Fraud, it is said, will never be presumed, though it may be
proved by circumstances. Now where an act does not necessarily
import fraud, where it has more likely been done through a good
than a bad motive, fraud should never be presumed.
Even if the grantor in deeds be justly chargeable with fraud,
but the grantees did not participate in it, and when they received
their deeds had no knowledge of it, but accepted the same in good
faith, the deeds upon their face purporting to convey a title in
fee, and showing the nature and extent of the premises, there can
be no doubt the deeds do give color of title under the statute of
limitations.
The case is fully stated in the opinion of the Court.
Page 33 U. S. 245
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action of ejectment was originally commenced, between the
above parties in the District Court, which possesses circuit court
powers, for the Western District of Pennsylvania, and a judgment
was obtained by Sayre and wife to recover possession of certain
lots of land within the original Manor of Pittsburgh. To reverse
this judgment, a writ of error was prosecuted, which brings the
case before this Court.
On the trial in the district court, a bill of exceptions was
taken, out of which arise certain points that are now to be
considered and decided. The bill of exceptions reads in part as
follows.
"And the counsel for the plaintiffs, to maintain and prove the
issue, gave in evidence, among other matters, a deed from John
Penn, Jr., and John Penn to Nathaniel Bedford, dated 31 May, 1786,
for sixty-two acres of land on the Monongahela River in the Manor
of Pittsburgh, being acknowledged on 1 June, 1786, in the City of
Philadelphia, and duly recorded, &c.; also an assignment,
endorsed upon said deed, of all the right, title, claim and
interest of the said Nathaniel Bedford to the premises to Mrs. Jane
Ormsby, dated 1 June, 1786, and duly acknowledged, &c.; also a
certificate of the Recorder of the County of Washington dated 15
October, 1831, that there is
Page 33 U. S. 246
no record of the transfer of the title to the premises aforesaid
by said N. Bedford to Mrs. Jane Ormsby in the office of Washington
County. It was then admitted by the attorneys for the parties that
the children of John and Jane Ormsby were Mrs. Bedford, who died on
8 July, 1790, without issue; John Ormsby, Jr., who died in August,
1795; Joseph B. Ormsby, who died on 20 December, 1803; Oliver
Ormsby, who died in the year 1832; and the present defendant, Mrs.
Sidney Gregg, who is the only survivor, and under the providence of
God a lunatic."
"It was further admitted that Mrs. Jane Ormsby, the wife of John
Ormsby, died intestate on 13 June, 1799, and that her husband, John
Ormsby, died on 19 December, 1805."
The possession of Mrs. Gregg, of the 25 acres, and of the 8
acres and 122 perches, the upper part of the 62-acre tract, was
then admitted by the counsel for the defendants.
The plaintiffs further offered in evidence a petition to the
Orphan's Court of the County of Allegheny, signed by O. Ormsby and
N. B. Craig, the committee of Mrs. Sidney Gregg, and filed in
November, 1828.
Among other evidence, the counsel for the defendants proved by
the testimony of John Hutchinson that he had known the family of
Mr. Ormsby for forty years, and lived as a tenant under the old
gentleman and his son Oliver Ormsby about thirty-five years, and
sometimes in their families before old John Ormsby's death. Isaac
Gregg, his son-in-law, as early as 1799 employed hands to clear out
the piece of property where the ferry house now stands, the part
next the hill being cleared and the part next the river being in
woods. That the said Gregg employed his brother and himself, who
cut off the timber into cordwood; that Mr. Gregg was cautious in
showing them the lines marked by a post on the bank and a
butterwood tree blazed four or five rods above the run that falls
into the river, that we should not cut the timber below it, as the
land belonged to Mr. Ormsby; that in the year 1800, Mr. Gregg
employed them to go up the hill and to cut timber to build a house
and four fences, and in the autumn
Page 33 U. S. 247
of 1800, the house was put up by them, and that he paid them
seventy-five or eighty dollars for doing it.
"Mr. Gregg put Alexander Gibson as a tenant in the house, who
occupied it that fall and the succeeding winter, and made an
agreement with Mr. Gregg to rent it for several years, but
afterwards abandoned it."
"Samuel Emmet went into the house in the spring of 1801 and
occupied it for a great number of years. George Kintzer was in it
for many years after Emmet. Andrew Rearick was there, and Young
lived in it a year, George Bonners for six months, Jacob Drake for
the years. These tenants were all put in by Isaac Gregg and his
family. Witness also stated that he recollected that Isaac Gregg
got another lot adjoining the twenty-five acre lot, and between it
and the bridge, about twenty-nine years ago. Mr. Gregg was to allow
John Tate, his tenant, out of the rent for putting up a barn, and
witness assisted him, &c. On the twenty-five acre lot, there
was the ferry house, a stable and a large shed; these improvements
were all made by Mr. Gregg. The fences were put round the upper lot
in 1800; the lower lot was fenced long before. The fences, since
that time, have been kept up, and the witness never understood that
anyone except Mr. Gregg had any claim to the lots. Witness refers
to the two lots in controversy."
"James Ross, Esq. testified, among other things, that he was
acquainted with John Ormsby's family in 1782. In 1784, Colonel
Woods, as the agent of the Penns, surveyed the sixty-two acres in
controversy and noted in his draft that the tract was platted for
John Ormsby. After the reservation of this lot from Mr. Ormsby, the
manor was subdivided. Mr. Woods and Mr. Brackenridge, who were the
counsel for Mr. Ormsby, recommended that the deed should be taken
out in the name of Mrs. Ormsby, and Doctor Bedford, her son-in-law,
proceeded to Philadelphia for that purpose and brought back the
title; the consideration money had probably been accumulated by
Mrs. Ormsby. Isaac Gregg was in possession of the property before
the dates of the deeds to him. In 1802, Mr. Gregg had the ferry,
and he and his tenants have held possession ever since."
"Other witnesses were examined who corroborated the facts
Page 33 U. S. 248
already stated. Defendants also produced and read in evidence
two deeds, the first from John Ormsby, Jr., to Isaac and Sidney
Gregg, dated 24 November, 1804, which had been duly acknowledged
and recorded, for twenty-five acres of the land in dispute, and
also a deed from the same to Sidney Gregg dated 13 April, 1805, for
eight acres and one hundred and twenty-two perches. Several leases
of the tenants of Isaac Gregg and his family were read, and proof
was made of the payment of taxes on the lots. The defendants also
read in evidence the will of Joseph B. Ormsby, and reference was
made to an action of partition instituted by the plaintiffs against
the defendants, in which a judgment had been rendered in favor of
defendants, to reverse which judgment, a writ of error was brought,
and was still pending in the Supreme Court of Pennsylvania."
The plaintiffs' counsel then proved by the testimony of Samuel
Pettigrew, Esq., that he was one of the viewers appointed by the
orphan's court under the petition of 23 December, 1832, before
referred to; that the viewers went on the ground and allotted a
portion of the upper part of the tract to Mrs. Gregg, and the lower
part to Mrs. Ormsby.
The counsel for the defendants then offered to prove by the
testimony of H. M. Watts, who was attorney for Mr. Ormsby and
presented the petition above referred to, that it was done at the
instance of Mr. Ormsby for the purpose of establishing his title to
the lower part of the tract; that at the time said petition was
signed, it was done reluctantly by Mr. N. B. Craig, as the
committee of Mrs. Gregg, and understood that Mrs. Gregg had
heretofore claimed the portion of the tract she occupied in
severalty, and that the said petition, and the decree of the court
upon it, were not to affect her right. Which testimony, on being
objected to, was overruled by the court.
The evidence being closed, the counsel for the defendants prayed
the court to instruct the jury on the following points.
1. To entitle the plaintiffs to recover on the ground that Mrs.
Sayre is a child and heir of John Ormsby, they must prove that
there was an actual marriage between him and her mother.
2. That the statute of limitations does apply to tenants in
common, and if the jury shall believe that the land in question
Page 33 U. S. 249
belonged to Jane Ormsby and descended to Mary Sayre and the
other heirs, yet the statute of limitations would be a bar to
plaintiffs' recovery if there was an actual adverse and continuous
possession in the defendant and those under whom she claims for
twenty-one years.
3. That if the jury shall believe the testimony of James Ross,
John Hutchinson and George Kintizer, the facts sworn to by them
establish that kind of actual continuous and adverse possession,
acknowledged by the courts, as coming up to and fully within the
statute of limitations. Several other points were made in the
special prayer for instructions, but it is not important, now, to
advert to them.
The court instructed the jury in substance that the deeds from
John Ormsby to the defendants dated in the years 1804 and 1805, and
which purported to convey the fee simple in consideration of
natural love and affection, did not transfer the fee, as Ormsby
only had a life estate in the premises.
"That the deed of the husband cannot pass his wife's lands, and
no possession of the lands by the grantee under the grant can
create a presumption of title or become adverse to the true owner.
An act or deed which is void cannot be the foundation of an adverse
possession, for it can give no color of title, and a void title is
not such a conveyance as that a possession under it will be
protected, under the statute of limitations. The conveyance of N.
Bedford to Jane Ormsby was endorsed on the deed from the Penns to
N. Bedford, and the conveyance by John Ormsby to Isaac and Sidney
Gregg recites the conveyance to Bedford. It must therefore be
presumed that John Ormsby had possession of the deed from the Penns
to N. Bedford and that he at least was conusant of the title of the
heirs of Jane Ormsby. The deeds to Isaac Gregg and to Sidney Gregg
set forth a conveyance from N. Bedford to John Ormsby; such a
conveyance, however, was never made, and while that is admitted,
the recital is attempted to be justified on other grounds. It is
clear that the deed from N. Bedford to Jane Ormsby was withheld
from the record by John Ormsby, and there is evidence enough to
infer that it was suppressed by him, for, being in possession of
the deed, he had power to direct it to be recorded. His omission to
do so, his false recital of a deed to himself from N. Bedford for
the same land, and
Page 33 U. S. 250
his concealment of the existence of any conveyance to Jane
Ormsby leave no doubt of his intention to suppress that conveyance.
This conduct was fraudulent on the part of John Ormsby, and it is
not material whether Isaac Gregg and Sidney Gregg were parties to
it or not, since no estate can be acquired by a fraudulent grant;
covinous conveyance of land is as no conveyance as against the
interest intended to be defrauded. And it must follow that no act
or deed which is fraudulent can be the foundation of an adverse
possession, because, being absolutely void and not merely voidable,
it cannot afford color of title, and without color of title there
is nothing by which an adverse possession can be obtained, and for
this reason. The statute of limitations does not extend to cases of
fraud, and only begins to run from the time the fraud becomes known
to the person then having the title. That all purchasers for a
valuable consideration are affected with constructive notice of all
that is apparent upon the face of the title deeds under which they
claim."
"The right of Sidney Gregg, as one of the heirs of John Ormsby,
if any she has as such, to the actual possession of the land,
accrued after the death of John Ormsby, Jr. She may have then
entered as one of the heirs of Jane Ormsby; and since that time to
the time of bringing this suit has held, as she alleges, adversely
to her co-tenants in common, and relies upon the statute of
limitations to protect her in her claim. A possession to prevent a
recovery or vest a right under the statute of limitations must be
actual, continued, adverse, and exclusive, and it is a settled
principle that the doctrine of adverse possession is to be taken
strictly, and not to be made out by inference, but by clear and
positive proof. Every presumption is in favor of possession in
subordination to the title of the true owner, and whenever an
adverse possession is relied on, there should be some proof of an
actual ouster. The possession of one tenant in common is
prima
facie the possession of his companion, and the possession of
the one can never be considered as adverse to the title of the
other unless it be attended with circumstances demonstrative of an
adverse intent. And if one tenant in common enters generally,
without saying for whom, it will be implied, that he enters
according to law -- that is, for himself and the other tenant or
tenants. To rebut
Page 33 U. S. 251
this presumption of the law, an actual ouster must be proved,
which, however, may be inferred from circumstances, of which the
jury are to judge. They may presume an actual ouster, where one
tenant in common enters on the whole, takes the profits and claims
the whole exclusively for twenty-one years. Under such
circumstances, his possession becomes adverse, and the act of
limitations begins to run. But a bare perception of profits by one
tenant in common is not an ouster of his co-tenant. The statute
will not run where one holds as tenant in common during the
minority of his co-tenant. That one tenant in common may oust his
co-tenant, 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 to be construed into an adverse possession. What
facts constitute an ouster and what adverse possession must be
determined by a jury. The party against whom the adverse possession
is claimed cannot be concluded by it if he labor under any of the
disabilities pointed out in the statute or where his co-tenant
claiming adversely has been guilty of fraud by concealing or
suppressing the title."
"If Isaac Gregg entered upon the land adversely, fenced and
occupied it exclusively, and that occupation has been
uninterruptedly continued for twenty-one years, it would be
available as a bar although Isaac Gregg may have entered as a
trespasser, but the acceptance of the deeds from John Ormsby in
1804 and 1805, although these deeds were void as to the
inheritance, must lead to the conclusion that he held under John
Ormsby, Sr. The petition to the orphan's court for a partition of
the land in December, 1828, supports this view of the case, and
both acts show a disaffirmance of the title by settlement and
improvement, if any existed."
The residue of the charge affirms principles some of which are
not controverted, and it need not be noticed.
This Court has frequently remonstrated against the practice of
spreading the charge of the judge at length upon the record,
instead of the points excepted to, as productive of no good, but
much inconvenience.
The principal question in this case, and indeed the only one of
much importance, arises under the statute of limitations.
Page 33 U. S. 252
By this statute, an adverse possession of twenty-one years under
a claim of title will bar a recovery though the occupant have no
title.
Possession of the lots in controversy was taken by the
defendants in the court below, and is still continued, but the
court instructed the jury that the acceptance of the deeds by Gregg
and wife from John Ormsby, Sr., in the years 1804 and 1805 was an
abandonment of their prior claim by occupancy, and that they must
be considered as holding under those deeds.
If it were necessary to a decision of this controversy, the
correctness of this instruction might well be questioned. Ormsby
had a life estate in the property, and it is not seen how the
grantees of this estate abandon their title in fee, or any other
claim beyond that of a life estate which they might have to the
premises. But, as the decision of the case must turn upon another
point, it is not necessary to examine this one.
It is true, as stated in the charge, that the husband cannot
convey his wife's land so as to bind the inheritance. That as he
holds only an estate for life in such land, he can convey no
greater interest. But were the circumstances under which the deeds
of 1804 and 1805, by John Ormsby to Gregg and wife, such as to make
those deeds fraudulent and wholly inoperative under the statute of
limitations? And was it immaterial whether Gregg and wife
participated in this fraud of Ormsby or had any knowledge of it, as
expressly charged by the court?
It is an admitted principle, that a court of law has concurrent
jurisdiction with a court of chancery in cases of fraud. But when
matters alleged to be fraudulent are investigated in a court of
law, it is the province of a jury to find the facts, and determine
their character, under the instruction of the court. Ormsby, in the
opinion of the district court, was guilty of fraud in not having
the deed from N. Bedford to Jane Ormsby recorded, in reciting in
his deeds to Gregg and wife, in 1804 and 1805, that a conveyance
had been made to him by Bedford, when he knew that it had been made
to Jane Ormsby his wife.
It would be difficult to assign any fraudulent motive to Ormsby
in either of the acts stated. The deed to his wife from Bedford was
valid though it was not recorded, and that he did not withhold it
from the record with any view to his
Page 33 U. S. 253
personal advantage is evident from the fact of his having
conveyed the property, in consideration of natural affection, to
the only surviving child of himself and the grantee.
In making these conveyances, on whom did he design to practice a
fraud? Not on the grantees, for he received no other consideration
from them than the impulse of fraternal attachment. Not on
creditors, for it does not appear that they have been prejudiced.
Did he design to defraud his granddaughter, who prosecuted the
action of ejectment in the district court? There is no foundation
in the facts and circumstances of the case for such an
imputation.
Does the recital in these deeds that Bedford had conveyed to
Ormsby afford evidence of fraud? This recital may have been made,
and indeed it would seem under the circumstances was, most
probably, made through a mistake of the law. Bedford had conveyed
to his wife Jane Ormsby, and he might suppose that a
feme
covert could not take an estate in fee, and that the
conveyance enured to his benefit.
It appears from the arguments of counsel that this question was
not considered entirely free from difficulty under the laws of
Pennsylvania among some of the learned profession at that early
day.
Fraud, it is said, will never be presumed, though it may be
proved by circumstances. Now where an act does not necessarily
import fraud, where it has more likely been done through a good
than a bad motive, fraud should never be presumed. But it is not
necessary to decide whether these conveyances were fraudulently
made by Ormsby or not. The important point is to know whether Gregg
and wife had any knowledge of the fraud, if committed, or
participated in it. This knowledge, the court charged the jury, was
immaterial, as the fraud of Ormsby rendered the deeds void, and
consequently they could give no color of title to an adverse
possession.
This instruction is clearly erroneous. If Ormsby be justly
chargeable with fraud, yet if Gregg and wife did not participate in
it, if when they received their deeds they had no knowledge of it,
there can be no doubt that the deeds do give color of title under
the statute of limitations.
Upon their face, the deeds purport to convey a title in fee,
Page 33 U. S. 254
and having been accepted in good faith by Gregg and wife, they
show the nature and extent of their claim to the premises.
Ormsby could convey no greater interest in the land than he
possessed, but there is no evidence to show that the grantees in
this case knew that his estate was limited or that, in accepting
the deeds, holding possession of the property, and improving it,
they did not act in good faith. The possession which they hold
under these deeds was adverse to Sayre and wife and all other
persons. The titles were for the whole property, and in fee;
consequently there can be no presumption that the possession was
held as co-tenants with the plaintiffs, in the court below. Both
the possession and the title were exclusive, and they were
consequently adverse to all other claimants.
The eighth section of the statute fixes the limitation of
twenty-one years as taking away the right of entry, and in the
ninth section it is provided
"That if any person or persons having such right or title be or
shall be at the time such right or title first descended or accrued
within the age of twenty-one years,
femes coverts, then
such person or persons and the heir or heirs of such person or
persons shall and may, notwithstanding the said twenty-one years'
be expired, bring his or their action, or make his or their entry,
&c., within ten years next after attaining full age,"
&c.
Mary Sayre, the defendant in error, was born in 1791, and she
was twenty-one years of age in 1812. Her father having previously
died, an interest in the property descended to her on the decease
of her grandmother, Jane Ormsby, in 1799.
The second deed, from Ormsby to Sidney Gregg, was made on 13
April, 1805, the first one having been executed the year before. On
13 April, 1826, the twenty-one years prescribed by statute expired,
and the bar was complete at that time if the possession had been
uninterrupted, as more than ten years had run from the time Mary
Sayre became of full age. The suit in the district court was not
commenced until May, 1830.
As this point decides the case, it is not necessary to examine
other parts of the charge to the jury. For the reasons assigned,
the judgment of the district court must be reversed.
Page 33 U. S. 255
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Western
District of Pennsylvania, and was argued by counsel, on
consideration whereof it is ordered and adjudges by this Court that
the judgment of the said district court in this cause be, and the
same is hereby reversed, and that this cause be and the same is
hereby remanded to the said district court for further proceedings
to be had therein according to law and justice and in conformity to
the opinion of this Court.