1. In Pennsylvania, a resulting trust in land, if not sought to
be enforced for a period of twenty-one years, and not reaffirmed
and continued, will, under ordinary circumstances, be
extinguished.
2. That rule is especially applicable where the party having the
legal title has, during the required period of twenty-one years,
been in notorious and adverse possession, paying the taxes,
exercising all the usual rights of owner ship, and his title has
for the whole period been on record in the proper office.
The facts are fully stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action of ejectment brought in the court below in
June, 1871, by James Turnbull, Jr., a subject of Mexico, against
Ario Pardee, a citizen of Pennsylvania, to recover one undivided
eighth part of a tract of land in Hazel Township, Luzerne County,
Pennsylvania, containing four hundred and thirty-nine and one-half
acres, known as the Mary Kunkle tract. Turnbull having died
pendente lite, King and other heirs at law were
substituted in his stead. Edward Roberts and the executors of
Algernon S. Roberts, deceased, were admitted to defend with Pardee
as his landlord of the premises in question. Plea, general
issue.
On the trial, evidence was given tending to show that Alexander
Turnbull died seised of the premises in question on the tenth day
of July, 1826, leaving a widow and four children his heirs at law,
namely James, Alexander, Jane, and Margaret, all of full age. The
widow died in 1832. Alexander Turnbull,
Page 96 U. S. 91
Jr., one of the heirs, died in Philadelphia in 1835, leaving the
plaintiff, his son and sole heir at law, then in the thirteenth
year of his age. It thus appeared that the plaintiff, as heir at
law of his father, was entitled to any interest in the lands in
question of which his father may have died seised. He left
Philadelphia for Mexico in 1850, in the twenty-eighth year of his
age.
The defendants gave in evidence a judgment on bond and warrant,
rendered in the Court of Common Pleas of Luzerne County on the
twenty-second day of February, 1827, against James Turnbull and
Alexander Turnbull, Jr. (two of the heirs of Alexander Turnbull),
at the suit of William Drysdale, administrator of Alexander
Turnbull, Sen., for the sum of $4,980: also a
fi. fa. and
venditioni exponas issued on said judgment; a levy under
said writs upon the premises in question; a return by the sheriff
of a sale thereof for the sum of $25 on the fourth day of August,
1827; and a deed in pursuance of such sale, to John N. Conyngham,
the attorney of the plaintiff in the judgment, bearing date the
14th of April, 1828; also a deed from Conyngham to Drysdale, the
administrator, and plaintiff in the judgment, for a like
consideration, dated the 10th of July, 1828. Both of these deeds
were recorded on the thirteenth day of January, 1832. The sheriff's
deed purported to convey all the right, title, and interest of
James Turnbull and Alexander Turnbull, Jr., in and to the premises
in question, and the deed from Conyngham conveyed all his title and
interest to Drysdale. The interest thus levied on and sold was, of
course, one undivided half of the premises in dispute. The claim of
the plaintiff is that this purchase at sheriff's sale by the
attorney of the administrator inured in equity to the benefit of
the heirs or distributees of his grandfather, by way of a resulting
trust, which would give him a right to one undivided eighth part of
the property.
Jane Turnbull, one of the heirs at law of Alexander Turnbull,
Sen., was the wife of William Drysdale, the administrator
aforesaid. Therefore, at this period, July, 1828, the legal title
acquired by William Drysdale in the shares of James and Alexander,
together with that of his wife and her sister Margaret, who was
unmarried, made up the entire legal title to the premises in
dispute.
Page 96 U. S. 92
The defendant then gave in evidence a warranty deed in fee
simple for the whole premises from William Drysdale and his wife
and Margaret Turnbull to the defendant Edward Roberts and Algernon
S. Roberts, now deceased, for the consideration of $46,500, which
deed was recorded Nov. 23, 1846, and also extracts from the
assessment books of Hazel Township, Luzerne County, showing the
assessment of the property to the Robertses from 1847 down to the
commencement of the suit. Evidence was also given tending to show
continued notorious and adverse possession of the property by the
defendants from 1846 to the commencement of the suit, by opening
and working coal mines thereon, building coal breakers, railroads,
houses, and other structures, and cutting wood over the whole
tract.
The question raised in this case was whether the resulting trust
which it is contended arose in favor of the heirs or distributees
of Alexander Turnbull, Sen., upon the purchase made by Drysdale,
his administrator, through his attorney, Conyngham, under the
judgment and execution against James and Alexander Turnbull, was
still valid and in force at the commencement of this action, or
whether it was barred by efflux of time.
The associate justice who tried the cause charged the jury as
follows:
"1. That though William Drysdale acquired the legal title to the
land in controversy by the deed of John N. Conyngham to him, dated
July 16, 1828, and recorded Jan. 13, 1832, yet he held in trust for
the estate of which he was administrator, or rather for the heirs
of the estate (there being no creditors), and held one undivided
eighth part thereof for Alexander Turnbull, Jr., or his assigns;
that this was not an express trust; that it was not declared in the
deed of Conyngham, or to Drysdale, but that it was a trust which
the law implied, growing out of the relation of the parties.
Drysdale, then, was the legal owner, while at the same time there
was an equitable right in the heirs of the elder Turnbull to
require him to convey the property to them, or, if he had sold it
at an advance, to require him to account for the proceeds of his
sale."
"The right of Alexander Turnbull, Jr., and that of the
plaintiff, who claims as his heir, is merely an equitable one. I
will
Page 96 U. S. 93
not, however, now instruct you that the plaintiff cannot recover
in this ejectment solely for that reason, but I call your attention
to the question whether the equity which arose when the sheriff's
sale was made to Conyngham, and subject to which Drysdale took the
land, survived until this suit was brought. Such rights do not live
forever. If they are not asserted within a reasonable time, they
die, and generally what is a reasonable time is determined in
analogy to the statute of limitations. If it be an implied
equitable right to land, ordinarily it cannot be enforced after
twenty-one years."
"It is true, if a party in whom such a right is vested has no
knowledge of its existence or means of knowledge, the law admits of
longer delay in asserting the right."
Reference was then made to the evidence which the jury was
directed to consider, with the instruction, that if they found
"the plaintiff's father, Alexander Turnbull, Jr., or the
plaintiff, had knowledge in 1828, when the trust arose, or in 1832,
when the deed to Drysdale was recorded, or at any time more than
twenty-one years before 1871, when this suit was brought, or that
they or either of them had means of knowledge that Drysdale, the
administrator, had taken the title to himself, and therefore held
it in trust, the claim was too stale, that any equity in the
plaintiff's favor that may once have existed cannot now be
enforced, and that the plaintiff cannot recover."
2. The jury was further instructed,
"That by the Act of Assembly of April 22, 1856, entitled, 'An
Act for the greater certainty of title and more secure enjoyment of
real estate,' it was enacted that no right of entry shall accrue or
action be maintained to enforce any implied or resulting trust as
to realty but within five years after such equity or trust accrued,
with the right of entry, unless such trust shall have been
acknowledged by writing to subsist by the party to be charged
therewith within the said period, with a proviso that as to anyone
affected with a trust by reason of his fraud, the limitation shall
begin to run only from the discovery thereof, or when by reasonable
diligence the party defrauded might have discovered the same, and
with a further proviso that any person who would sooner be barred
by the act should not be thereby barred for two years after its
passage. "
Page 96 U. S. 94
This act, the jury were instructed, embraced such a trust as the
plaintiff is seeking to enforce in this action, and they were
charged that if they found Drysdale was guilty of no fraud in
taking the deed to himself as he did, or even if he became a
trustee by reason of his fraud, if they found that his fraud was
discovered by the party defrauded, or might have been discovered by
reasonable diligence more than five years before 1871, the action
could not be maintained, and the verdict should be for the
defendants.
3. The jury were also instructed as follows:
"The defendants also insist that they are protected by the
general statute of limitations."
"The evidence tends to show that when Messrs. Roberts bought the
land in 1846, they put Pardee and Fell immediately in possession as
their tenants, and that these tenants have continued in possession
ever since. You have heard the evidence; what it proves is for you.
It is not contradicted that these tenants sunk coal shafts and
slopes on the land, built railroads, coal breakers, numerous
houses, a saw mill, and cut timber over the whole tract. Was this
an adverse, exclusive, notorious, hostile, and continued possession
for twenty-one years before the suit was brought? If it was, the
plaintiff cannot recover; he is barred by the statute of
limitations."
"It is true, no length of possession will protect a party
against the entry or action of one in subordination to whom the
possession has been held, and if the entry was in subordination to
the title or right of another, the possession is presumed to be
continued subordinate until notice of adverse claim is brought home
to the holder of the paramount title. But I see no evidence that
the defendants entered in subordination to any right of the
plaintiff. When we speak of a subordinate title, we mean that the
inferior title is in privity with another, as in case of a tenancy
for years, life, at will, &c. There was no such entry in this
case. The Messrs. Roberts put upon record, at the beginning, a deed
declaring the entire interest to be in themselves, and there is no
evidence that either they or their tenants, Pardee and Fell, ever
acknowledged a superior right, or any right, in the plaintiff."
"It is also true, that the possession of one tenant in
common
Page 96 U. S. 95
is generally regarded as the possession of his co-tenant until
an ouster has taken place, and an ouster must be proved or presumed
from facts in proof. It is argued on behalf of the plaintiff that
he was a tenant in common with the Messrs. Roberts in 1846, when
they entered by their tenants. Certainly he was not of the legal
estate, but if he was then a tenant in common with them, what is
the legitimate effect of the evidence? It has been decided by the
supreme court of this state that when one tenant in common enters
on the whole and takes the profits and claims the whole exclusively
for twenty-one years, the jury ought to presume an ouster, though
none be proved. 10 S. & R. 182; 9 Pa.St. 226; 13 S. & R.
356; 3 W. 77."
"The jury are therefore instructed that if they find from the
evidence that the defendants entered upon the property in 1846, by
themselves or their tenants, claiming it as their own exclusively,
receiving its profits, and that they have maintained notorious,
adverse, exclusive, hostile, and uninterrupted possession of the
entire tract ever since, the verdict should be for the
defendants."
4. The court also charged the jury that the plaintiff, claiming
as he does as heir of his father, stands in no better situation
than his father would stand in were he living and had this action
been brought by him.
To each proposition of this charge in favor of the defendants
the plaintiff excepted, and the question here is whether it
contained any error prejudicial to him. After giving due attention
to the laws and judicial decisions of Pennsylvania, we are
satisfied that the charge was as favorable to the plaintiff as
could be asked. Each of its positions seems to be abundantly
sustained by authority. A leading case on the first point is
Strimpfler v. Roberts, 18 Pa.St. 283, which adopts the
general rule that a resulting trust, resting in parol, is to be
regarded as extinguished after the lapse of twenty-one years. This
case has frequently been affirmed by subsequent cases cited in the
defendants' brief. In
Fox v. Lyon, 33
id. 474, it
is said:
"In
Strimpfler v. Roberts it was decided, on great
consideration, and reaffirmed in
Brock v. Savage, 31
id. 401, that where a warrant is issued to one person, and
the purchase money is paid by another, and the patent is afterwards
taken out by the nominal
Page 96 U. S. 96
warrantee, the right of him who paid the purchase money is gone
unless he takes possession of the land or brings ejectment to
recover it within twenty-one years from the date of the warrant,
and after that lapse of time he cannot recover no matter how
clearly he may be able to prove that the legal owner was, in the
beginning, a trustee for him."
And this decision was followed in the said case of
Fox v.
Lyon. It was also followed and reaffirmed in the subsequent
cases of
Halsey v. Tate, 52
id. 311, and in
Lingenfelter v. Richey, 62
id. 123. In the latter
case it was claimed that a deed absolute on its face was
nevertheless in trust. The court, following and relying on the
cases of
Strimpfler v. Roberts and other cases to the same
effect with reference to the parties claiming the benefit of the
said trust, said:
"As they claimed title to the land against the express language
of the deed, they were bound to show by clear and satisfactory
evidence that there was a resulting trust in favor of Sparks and
that he had taken such possession of the land, or exercised such
exclusive acts of ownership over it, within twenty-one years from
the time the trust arose, as would prevent its extinguishment."
It is therefore an undoubted rule of law in Pennsylvania that a
resulting trust in land, if not sought to be enforced for a period
of twenty-one years and is not reaffirmed or continued, will, under
ordinary circumstances, be extinguished. This rule is especially
applicable where the party having the legal title has, during the
required period of twenty-one years, been in notorious and adverse
possession, paying the taxes and exercising all the usual rights of
ownership, and his title has for the whole period been on record in
the proper office. On this point, therefore, we think the charge
was correct and unexceptionable.
We are also of opinion that the statute of 1856 and the general
statute of limitations were applicable to the case upon the facts
as submitted to the jury. As these points are fully explained in
the charge itself, we deem it unnecessary to discuss them.
The fourth point needs no remark.
Judgment affirmed.