Under a will which devised land to the son of the testator, and
provided that the widow should continue in possession and
occupation of the premises until the son arrived at the age of
fifteen years, she was entitled to their possession and enjoyment
until the time when the child would have reached the age of fifteen
if he had lived, although he died before that time.
Her possession, therefore, was not adverse to the heirs of the
child during that period.
Where the original possession by the holder of land is in
privity with the title of the rightful owner, to order to enable
such holder to avail himself of the statute of limitations, nothing
short of an open and explicit disavowal and disclaimer of holding
under that title and assertion of title in himself brought home to
the other party will satisfy the law.
The burden of proof is on the holder to establish such a change
in the character of the possession.
The statute does not begin to run until the possession becomes
tortious and wrongful by the disloyal acts of the tenant, which
must be open, continued, and notorious, so as to preclude all doubt
as to the character of the holding or the want of knowledge on the
part of the owners.
In this case, there was evidence enough given upon this point to
authorize the court below to submit the question of adverse
possession to the jury and advise them that a foundation was laid
upon which they might presume a grant for the purpose of quieting
the title.
The whole charge of the judge to the jury is incorporated into
this record. This mode of making up the error books is exceedingly
inconvenient and embarrassing to the Court, and is a departure from
familiar and established practice.
So far as error is founded upon the bill of exceptions
incorporated into the record, it lies only to exceptions taken at
the trial and to the ruling of the law by the judge and to the
admission or rejection of evidence. And only so much of the
evidence as may be necessary to present the legal questions thus
raised and noted should be carried into the bill of exceptions. All
beyond serves to encumber and confuse the record and to perplex and
embarrass both court and counsel.
The earlier forms under the statute giving the bill of
exceptions are models which it would be wise to consult and adhere
to.
This was a writ of error to the Circuit Court of the United
States for the Eastern District of Pennsylvania to bring up for
review certain instructions to the jury in an action of ejectment
brought by the plaintiff in error against the defendants in error,
and in which the latter obtained the verdict.
Frederick White was the owner of the premises in question, being
part of a small tract of land situate in the County of Lancaster,
Pennsylvania, of which he died seized in March, 1798, leaving a
last will and testament by which he devised the said land in fee to
Frederick White, Jr., his only child, who was then about four years
of age. He also provided in the will that his widow should
continue
Page 45 U. S. 290
in possession and occupation of the premises till the son
arrived at the age of fifteen.
The widow married again in about nine months after the decease
of her husband, Frederick White, to one George Eckert. One of the
defendants, Jacob K. Eckert, is a son of that marriage, who was
born in 1799. The other defendants claim under him.
Frederick White, Jr., the son, died in 1800, then about six
years of age, leaving his mother and Jacob K. Eckert, the
half-brother, surviving.
The mother resided upon the farm about one year, and then left
the possession, but her husband had the charge of it, occupying and
improving the land, leasing the same and receiving the rents and
profits, till their son became of age, when he went into the
possession and management, and he and those claiming under him have
been in the possession and occupation of the same down to the
present time. The farm has always been occupied, improved, and
claimed as belonging to the half-brother, first by Eckert, the
father, during his minority, and afterwards by the son (Jacob K)
himself, and those under him. Large and valuable improvements have
been made while it was thus occupied.
Frederick White, the testator, was a native of Germany, and
emigrated to this country as early as 1755, and soon after settled
in Lancaster County, and purchased the premises in question, where
he resided till his death, in 1798, being then about eighty years
of age.
The lessors of the plaintiff claim to be the descendants of a
half-sister, whom he left in Germany, and to be the heirs at law of
Frederick White, Jr., the deceased son. Evidence was given on the
trial tending to establish the heirship derivable from this source
and which constitutes their title to the premises.
It further appeared that as early as 1806, a family of the name
of Bonert, another branch of the descendants of the half-sister,
instituted action of ejectment against George Eckert, the father of
the defendant, in the Common Pleas of Lancaster County, to recover
the premises, as the heirs of the deceased son, Frederick White,
Jr. This litigation appears to have been continued till 1810, when
the controversy was referred to arbitrators, and an award made
against the plaintiffs.
Another suit in ejectment was brought in the Circuit Court of
the United States for the Eastern District of Pennsylvania by the
same plaintiff which ended in a compromise between the parties in
1818, by whom it was agreed that the property should be appraised,
the plaintiffs to have one-third, and Jacob K. Eckert, the
half-brother, the remaining two-thirds, and that they should cast
lots in order to determine which of the parties should have the
land, and pay the valuation according to their proportion. The land
was appraised at the sum of $24,000; the plaintiffs got the
Page 45 U. S. 291
right to make their election, and they chose the land, by which
they became obligated to pay to Eckert the sum of $16,000 in one
year from the time the election was made. They failed to make the
payment to pursuance of the agreement, and in 1823 a judgment was
recovered against them for the amount and interest, and all their
right and title to the property was sold on execution under the
judgment to Jacob K. Eckert, the half-brother.
It further appeared that the lessors of the plaintiff in the
present suit, called the Shultzheiss branch of the descendants of
the half-sister, also brought suits against George Eckert, executor
of the estate of Frederick White, the testator, to recover their
share of the personal property, in the Common Pleas of Lancaster
County, which in 1810 was referred to arbitrators, and an award
made against them.
The latter were the only suits instituted by this branch of the
heirs till the present suit was instituted to recover the real
estate, which was commenced in April, 1834, and of course has been
pending for nearly twelve years.
When the testimony closed, the counsel for the plaintiff prayed
the court to instruct the jury that inasmuch as the widow of
Frederick White was directed by his will to keep possession of the
land until the son to whom it was devised should arrive at the age
of fifteen, the possession by her and her husband was to be
considered in the character of trustees of the estate for his
benefit, and after his death for the benefit of those who might be
entitled to the inheritance as heirs at law, and that the
possession therefore was not adverse to the plaintiff's title; that
the trust having once attached, the possession of Eckert and wife
could not become adverse to the title of the
cestuis que
trust.
Which instruction the court refused, and charged the jury as
follows:
"That, however true it might be, in point of fact, that the
widow and her husband did enter upon and continue the possession of
the land as trustees for young White, or his heirs, up to any
stated period, the legal consequences asserted by the plaintiff's
counsel would not result. A trustee of any description may disavow
and disclaim his trust, though it is in the utmost bad faith or in
violation of his express agreement, from which time his possession
of lands, money, or chattels, held under an original trust, becomes
adverse, so as to bar an action of account after six years, or an
ejectment in twenty-one years after notice of the disavowal,
disclaimer, and adverse possession is given to the person entitled
to the benefit of the execution of the trust. . . . That notice of
the disclaimer puts the true owner under the same obligation to
reclaim the possession within the fixed period, as if no trust had
ever existed, and it matters not whether the trust began by the
voluntary act of the trustee, or the law made him a trustee against
his
Page 45 U. S. 292
will, as the result of his situation or conduct."
And further,
"That taking all the testimony in the cause in connection, the
court thought the jury would be justified in finding that the
possession of the defendants, from the death of young White, was
adverse to the right and title of the plaintiff, and that George
Eckert held it for his son, and that should this be their opinion,
the statute of limitations began to run against the right in 1809,
and had its full effect in 1830, by a continued adverse possession
of twenty-one years."
The court also instructed the jury that they were authorized,
from the fact of the lessors of the plaintiff having made a claim
to the estate of Frederick White, Sr., as early as 1806, and
afterwards abandoning it till 1834, together with the other facts
and circumstances in the case, to presume a grant to Jacob K.
Eckert from the heirs.
To all which instructions the counsel for the plaintiff
excepted, and a verdict was rendered for the defendants.
Page 45 U. S. 294
MR. JUSTICE NELSON delivered the opinion of the Court.
According to the true construction of the will of Frederick
Page 45 U. S. 295
White, we are inclined to think that the widow was entitled to
the possession and enjoyment of the premises in question down to
the year 1809, when the son would have arrived at the age of
fifteen had he survived, notwithstanding his death in 1800, some
nine years short of that time, as the testator probably intended
the rents and profits during this period as a part of her provision
in the settlement of his estate. The right of entry therefore did
not accrue to the lessors of the plaintiff till that time. Then the
widow and her husband were bound to surrender the possession to the
son had he lived, and of consequence to his heirs at law in the
event of his death.
The statute of limitations attached and began to run from this
period, provided the evidence is sufficient to raise an adverse
possession on the part of the defendants, in hostility to the title
of the heirs.
This suit was commenced in April, 1834, some twenty-five years
from the time the right of entry accrued. The statute of
limitations in the State of Pennsylvania is twenty-one years.
The original possession of Eckert, the husband of the widow,
being confessedly in subordination to the title of the younger
White during his lifetime, and after his decease to the title of
the heirs at law, down to 1809, when the right to occupy under the
will ceased, the burden lay upon him to establish a change in the
character of the possession after this period, and being thus in
privity with the title of the rightful owner, nothing short of an
open and explicit disavowal and disclaimer of a holding under that
title, and assertion of title in himself or in his son, the
half-brother, brought home to the lessors of the plaintiff, will
satisfy the law. Short of this, he will still be regarded as
holding in subserviency to the rightful title. There are
authorities maintaining the doctrine that a party standing in the
relation of Eckert to the title in question is incapable in law of
imparting, by any act of his own, an adverse character to his
possession, and that in order to deny or dispute the title, he must
first surrender the possession and place the owner in the condition
he stood before the possession was taken under him. This doctrine
was supposed to govern the rights of trustee and
cestui que
trust, landlord and tenant, vendor and vendee, tenants in
common &c., and that no lapse of time would lay a foundation
for a statute bar to the right of entry by reason of an adverse
possession between parties standing in this relation, or any others
in like privity.
The law, however, has been settled otherwise. The trustee may
disavow and disclaim his trust; the tenant, the title of his
landlord after the expiration of his lease; the vendee, the title
of his vendor after breach of the contract; and the tenant in
common, the title of his cotenant; and drive the respective owners
and claimants to their action within the period of the statute of
limitations.
Page 45 U. S. 296
2 Bos. & Pul. 542; 5 Barn. & Ald. 232; Cowp. 217; 2
Stark.Ev. 887; 7 Johns.Ch. 90; 20 Johns. 565; 4 Serg. & R. 310;
20 U. S. 7
Wheat. 548;
28 U. S. 3 Pet.
52, C. & H.'s note, Pt. 1, notes, 307, 311, and cases; 2 Sch.
& Lefr. 633; 2 Jac. & Walk. 1, 191.
The only distinction between this class of cases and those in
which no privity between the parties existed when the possession
commenced is in the degree of proof required to establish the
adverse character of the possession. As that was originally taken
and held in subserviency to the title of the real owner, a clear,
positive, and continued disclaimer and disavowal of the title, and
assertion of an adverse right, and to be brought home to the party,
are indispensable before any foundation can be laid for the
operation of the statute. Otherwise, the grossest injustice might
be practiced, for without such notice, he might well rely upon the
fiduciary relations under which the possession was originally taken
and held, and upon the subordinate character of the possession as
the legal result of those relations.
The statute therefore does not begin to operate until the
possession, before consistent with the title of the real owner,
becomes tortious and wrongful by the disloyal acts of the tenant,
which must be open, continued, and notorious, so as to preclude all
doubt as to the character of the holding, or the want of knowledge
on the part of the owner. If he then neglects to enforce his rights
by action within the period fixed by the statute, the loss, as in
every other case of the kind, is attributable to his own laches,
and not to the law.
The main question, therefore, here is as to the sufficiency of
the proof. It appears that as early as 1809 the heirs claiming here
instituted actions against Eckert, as executor of Frederick White,
the testator, to recover their share of the personal estate, as
next of kin to the younger White, which were resisted, on the
ground the whole estate belonged to the half-brother, and the claim
defeated. Another branch of the same family, at an earlier date
(1806), instituted actions of ejectment to recover their share of
the real estate, which were resisted upon like ground, and like
result. Both branches of the litigation were brought to a close in
1810. The latter branch (not the parties here) again renewed the
litigation to recover the realty in 1816, which terminated in 1818
by compromise, with a view to put an end to the controversy, but
which fell through by reason of the failure of the plaintiffs to
fulfill the conditions of the settlement.
The present is the first suit brought by this branch of the
heirs to recover the real estate, and which was commenced after the
lapse of twenty-five years from the time their right of entry
accrued, and after the lapse of the same period, also, from the
termination of a litigation on behalf of themselves and their
co-heirs
Page 45 U. S. 297
to recover the estate, real and personal, in which the present
defendant succeeded. During all this time their title has been
disavowed and resisted, and the right and title of the half-brother
of the younger White asserted and maintained, and the property
occupied, cultivated, and improved under this claim of title and
ownership, and portions of it are now in possession of
bona
fide purchasers, upon which large and valuable erections and
improvements have been made.
We are satisfied, therefore, that the court below were right in
submitting the question of adverse possession to the jury, as there
was evidence enough, even within the strictest rules of law on this
subject, arising out of the fiduciary relation in which the
defendant originally stood to the title, to make this the duty of
the court. And, further, looking at all the facts and circumstances
disclosed at the trial, and characterizing the possession,
occupation, and improvement of the property, we cannot say that any
error was committed in also advising the jury that a foundation was
laid upon which they might presume a grant for the purpose of
quieting the title.
Twenty years' possession by one of two tenants in common,
accompanied with an exclusive appropriation of the rents and
profits, acquiesced in by the cotenant, has been held to afford the
presumption of a conveyance from the party out of the possession,
Cowp. 217, and the same length of time, coupled with other
circumstances, a conveyance or release of an equity of redemption
to the mortgagee in possession,
22 U. S. 9
Wheat. 490,
22 U. S.
497-498.
The facts and circumstances in this case, in connection with the
length of the possession and occupation, are much stronger in favor
of allowing the presumption, than existed in several cases where
the doctrine has been applied.
The charge of the court below is a most elaborate one,
discussing at large both the law and the facts upon general
principles and upon authorities, as well as in reference to the
particular questions involved, and the whole incorporated into the
record. Some of the comments, both upon the law and the facts, are
justly liable to the criticisms made by the learned counsel on the
argument. But, looking at the whole case, and the main grounds upon
which it was placed before the jury, we cannot say that the
appellate court should interfere, or that the parts obnoxious to
the criticisms afford ground of review and reversal on a writ of
error.
This mode of making up the error books is exceedingly
inconvenient and embarrassing to the court, and is a departure from
familiar and established practice.
So far as error is founded upon the bill of exceptions
incorporated into the record, it lies only to exceptions taken at
the trial to the ruling of the law by the judge, and to the
admission or rejection of evidence. 1 Bac.Abr. 779; Bull.N.P. 316.
Beyond this
Page 45 U. S. 298
we have no power to look into the bill, on a writ of error, as
it is the creature of statute, and restricted to the points stated.
13 Edw. 1, c. 31. And only so much of the evidence given on the
trial as may be necessary to present the legal questions thus
raised and noted should be carried into the bill of exceptions. All
beyond serves only to encumber and confuse the record, and to
perplex and embarrass both court and counsel.
We have no concern, on a writ of error, with questions of fact,
or whether the finding of the jury accords with the weight of the
evidence. The law has provided another remedy for errors of this
description, namely, a motion in the court below for a new trial,
on a case made. More attention to the practice in drawing up the
bill of exceptions, and to method and order in making up the error
books, would greatly relieve the court, and enable counsel to bring
out more readily and distinctly for consideration the legal
questions involved. The earlier forms under the statute giving the
bill of exceptions are models which it would be wise to consult and
adhere to.
We think the judgment in the circuit court should be
Affirmed.
