Possession of land by a party, claiming it as his own in fee, is
prima facie evidence of his ownership and seizin of the
inheritance.
But possession alone, unexplained by collateral circumstances,
evidences no more than the mere fact of present occupation by right
the law will not presume a wrong, and a mere possession is just as
consistent with a present interest under a lease for years or for
life as in fee. It must depend on the collateral circumstances what
is the quality and extent of the interest claimed by the party, and
to that extent only will the presumption of law go in his favor.
The declarations of the party while in possession, equally with his
acts, must be good evidence for this purpose. If he claims only an
estate for life, and that is consistent with his possession, the
law will not, upon the mere fact of his possession, adjudge him to
be in under a higher right or a larger estate.
If a party be in under title, and by mistake of law supposes
himself possessed of a less estate in the land than really belongs
to him, the law will adjudge him in possession of and remit him to
his full right and title. For a mistake of law shall not in such
case prejudice the right of the party, and his possession therefore
must be held coextensive with his right.
It is a general rule that a disseizor cannot qualify his own
wrong, but must be considered as a disseizor in fee.
But this rule is introduced only for the benefit of the
disseizee, for the sake of electing his remedy.
And it must also appear that the party found in possession
entered without right, for if his entry were congeable or his
possession lawful, his entry and possession will be considered as
limited by his right.
Presumptions of a grant arising from the lapse of time are
applied to corporeal as well as incorporeal hereditaments.
They may be encountered and rebutted by contrary presumptions,
and can never arise where all the circumstances are perfectly
consistent with the nonexistence of a grant.
A fortiori they cannot arise where the claim is of such
a nature as is at variance with the supposition of a grant.
In general, the presumption of a grant is limited to periods
analogous to those of the statute of limitations in cases where the
statute does not apply.
Where the statute applies, the presumption is not generally
resorted to, but if the circumstances of the case are very cogent
and require it, a grant maybe presumed within a period short of the
statute.
Under the laws of Massachusetts and Connecticut, the power of an
administrator to sell the real estate of his intestate under an
order of the court of probates must be exercised within a
reasonable time after the death of the intestate.
The case of such a power to sell is not within the purview of
the statute of limitations of Connecticut, which limits all rights
of entry and action to fifteen years after the title accrues, but
the reasonable time within which the power must be exercised is to
be fixed by analogy to that statute.
One heir, notwithstanding his entry as heir, may afterwards, by
disseizin of his co-heirs, acquire an exclusive possession upon
which the statute will run both against his co-heirs and against
creditors.
An heir may claim an estate by title distinct or paramount to
that of his ancestor, and if his possession is exclusive under such
claim against all other persons until the statute period has run,
he is entitled to the protection of the bar.
Page 20 U. S. 60
This was a suit instituted by the defendants in error against
the plaintiff in error in the court below. The original action is
commonly known in Connecticut by the name of an action of
disseizin, and is a real action, final upon the rights of the
parties and in the nature of a real action at the common law. The
cause was tried upon the general issue,
nul tort, nul
disseizin, and a verdict being found for the demandants, a
bill of exceptions was taken to the opinion of the court upon
matters of law at the trial.
The history of the case as it stands upon the record is in
substance as follows. The demandants claimed the estate in
controversy by purchase from the administrator of William Dudley at
a sale made by him for the payment of the debts of his intestate
pursuant to the laws of Connecticut, which authorize
Page 20 U. S. 61
a sale of the real estate of any person deceased for the payment
of his debts when the personal assets are insufficient for that
purpose. In order to establish the title of William Dudley in the
premises, the demandants proved that Thomas Dudley, the father of
William, was in his lifetime possessed of the premises as parcel of
what were called the Dudley lands, and died possessed of the same
in 1769, leaving seven children, of whom William was eldest, being
of about the age of fourteen years, and Joseph Gerriel, the
youngest, being about four years of age. Upon the death of his
father, Joseph Mayhew, the guardian of William, entered into
possession of the Dudley lands and of the demanded premises as
parcel, taking the rents and profits in his behalf during his
minority, and upon his arrival of age, William entered and occupied
the same, taking the rents and profits to his own use until his
death, which happened in the year 1786, all his brothers and
sisters being then living. During the life of William, no other
person claimed any right to enter or occupy the premises except
that his mother used to receive one-third of the rents and profits,
until she died in the year 1783. During his life and while in
possession of the premises, William always declared that he held
the same only for life, and therefore would not allow any
improvements on them at his expense; no leases were made by him
except for short periods, and no attempt was made by him to sell or
convey the premises, and he declared that he had no right to sell
them and that upon his death they would descend to his son Joseph
Dudley, under whom the tenant derived
Page 20 U. S. 62
his title in the manner hereafter stated. No administration was
ever taken in Connecticut upon the estate of William Dudley until
1814, and his estate was then declared insolvent, and in 1817 the
lands in controversy were sold by the administrator by order of the
court of probates for the payment of the debts found due under the
commission of insolvency.
To rebut the title of the demandants and to establish his own,
the tenant proved that William Dudley died intestate leaving seven
children, the eldest of whom was Joseph Dudley. Upon the death of
his father, the guardian of Joseph (the latter being within age),
entered into possession of the Dudley lands and the demanded
premises as parcel and used and occupied the same, receiving the
rents and profits in behalf of Joseph until his arrival of age,
when Joseph himself entered into possession, claiming them as his
own and taking the rents and profits to his own use, and holding
all other persons out of possession, until the year 1811 and 1812,
when he sold the demanded premises, and the tenant, either by
direct or mesne conveyances under Joseph, came into possession, and
has ever since held the premises in his own right. In the year
1811, Samuel Dudley, the brother of Joseph, claimed title to some
of the Dudley lands possessed by Joseph and brought an action of
ejectment for the recovery of them, but the suit was compromised by
Joseph's paying him about $2,000, and about the same time Joseph
settled with another of his brothers, but did not pay him anything.
But Joseph never admitted that his brothers
Page 20 U. S. 63
or sister had any interest in the lands, and said he could hold
them, and did hold them in the same manner as he held the lands in
Massachusetts.
The will of Governor Dudley, which was admitted to probate in
Massachusetts in 1720, was also in evidence, but neither party
established any privity or derivation of title under it.
Upon these facts, the tenant prayed the court to instruct the
jury that the demandants had not made out a title in themselves nor
in William Dudley. Not in themselves, because the sale by the
administrator to the demandant was void by force of the statute
regarding the sale of disputed titles, the tenant being in
possession of the property at the time of the sale, claiming it as
his own, and that William Dudley had acquired no title to the
property in question by possession, as he claimed to hold the same
only during his life and could therefore acquire no title except
for life by any length of possession, and that if he could acquire
title by possession, if this estate descended from Thomas Dudley,
said William could not in seventeen years acquire a title against
his brothers and sisters, or at least against those of them who had
not been of full age for five years before the death of said
William, and if the demandants could recover at all, it could only
be for that proportion of the estate which descended from William
as one of the heirs of Thomas Dudley.
The tenant further prayed the court to instruct the jury that if
they found that Joseph Dudley had, for more than fifteen years
before he sold the land in controversy, been in possession of the
same, exclusively
Page 20 U. S. 64
claiming them as his own, and holding out all others, he had
gained a complete title to the property.
The tenant further claimed that the court ought to have
instructed the jury that under the circumstances attending the
possession of said lands by William Dudley, the father, and by
Joseph Dudley, and the length of time which had elapsed since the
death of said William, without any claim on the part of the
creditors of said William, the jury might presume a grant from some
owner of the land to William for life, with remainder to his eldest
son. But the court did charge and instruct the jury that the sale
by the administrator under an order of court was not within the
statute regarding disputed titles, and was not therefore void. That
William Dudley, by mistaken constructions of the will of governor
Dudley, might have claimed an estate for life in the premises, and
that such mistake would not operate to defeat his title by
possession. That the length of time in which this estate had been
occupied by William and Joseph Dudley would bar any claims by the
other children of Thomas Dudley deceased, and that the jury were
authorized to presume a grant by said children to their brother
William Dudley deceased, and therefore if the demandants recovered,
they must recover the whole of the premises.
The court also charged the jury that as against the creditors of
William Dudley, neither Joseph Dudley nor the tenant had gained
title to the lands in controversy by possession, and that the jury
were not authorized to presume a grant to Joseph.
Page 20 U. S. 65
To which several opinions of the court, the tenant by his
counsel excepted.
Page 20 U. S. 105
MR. JUSTICE STORY delivered the opinion of the Court.
The principal questions which have arisen and have been argued
here upon the instructions given by the circuit court, and to which
alone the Court deems it necessary to direct their attention are
first whether upon the facts stated, a legal presumption exists
that William Dudley died seized of an estate of inheritance in the
demanded premises, and if so, secondly, whether an exclusive
possession of the demanded premises by Joseph Dudley and his
grantees after the death of William under an adversary claim for
thirty years is a bar to the entry and title of the demandants
under the administration sale.
It is to be considered that no paper title, of any sort is shown
in William Dudley or his son Joseph. Their title, whatever it may
be, rests upon possession, and the nature and extent of that
possession must be judged of by the acts and circumstances which
accompany it and qualify, explain, or control it. Undoubtedly if a
person be found in possession of land claiming it as his own in
fee, it is
prima facie evidence of his ownership and
seizin of the inheritance. But, it is not the possession alone, but
the possession accompanied with the claim of the fee that gives
this effect by construction of law to the acts of the party.
Possession,
per se, evidences
Page 20 U. S. 106
no more than the mere fact of present occupation by right, for
the law will not presume a wrong, and that possession is just as
consistent with a present interest, under a lease for years or for
life, as in fee. From the very nature of the case, therefore, it
must depend upon the collateral circumstances, what is the quality
and extent of the interest claimed by the party, and to that extent
and that only will the presumption of law go in his favor. And the
declarations of the party, while in possession, equally with his
acts, must be good evidence for this purpose. If he claims only an
estate for life, and that is consistent with his possession, the
law will not, upon the mere fact of possession, adjudge him to be
in under a higher right or a larger estate. If, indeed, the party
be in under title, and by mistake of law he supposes himself
possessed of a less estate in the land than really belongs to him,
the law will adjudge him in possession of and remit him to his full
right and title. For a mistake of law shall not in such case
prejudice the right of the party, and his possession therefore must
be held coextensive with his right. This is the doctrine in
Littleton, s. 695, cited at the bar, and better authority could not
be given, if indeed so obvious a principle of justice required any
authority to support it. But there the party establishes a title in
point of law greater than his claim, whereas in the case now
supposed the party establishes nothing independent of his
possession, and that qualified by his own acts and declarations.
This is the distinction between
Page 20 U. S. 107
the cases, and accounts at once for the different principles of
law applicable to them.
It has also been argued at the bar that a person who commits a
disseizin cannot qualify his own wrong, but must be considered as a
disseizor in fee. This is generally true, but it is a rule
introduced for the benefit of the disseizee for the sake of
electing his remedy. For if a man enter into possession under a
supposition of a lawful limited right, as under a lease, which
turns out to be void, or as a special occupant, where he is not
entitled so to claim, if he be a disseizor at all, it is only at
the election of the disseizee. Com.Dig. Seizin. F. 2 & F. 3; 1
Roll. Abrid. 662, l. 45.
Id., 661. l. 45. There is nothing
in the law which prevents the disseizee from considering such a
person as a mere trespasser at his election, or which makes such an
entry, under mistake for a limited estate, a disseizin in fee
absolutely and at all events, so that a descent cast would toll the
entry of the disseizee. But were it otherwise, in order to apply
the doctrine at all, it must appear that the party found in
possession entered without right, and was in fact a disseizor, for
if his entry were congeable, or his possession lawful, his entry
and possession will be considered as limited by his right. For the
law will never construe a possession tortious unless from
necessity. On the other hand, it will consider every possession
lawful the commencement and continuance of which is not proved to
be wrongful. And this upon the plain principle that every man shall
be presumed to act in obedience to his duty
Page 20 U. S. 108
until the contrary appears. When, therefore, a naked possession
is in proof, unaccompanied by evidence as to its origin, it will be
deemed lawful and coextensive with the right set up by the party.
If the party claim only a limited estate, and not a fee, the law
will not, contrary to his intentions, enlarge it to a fee. And it
is only when the party is proved to be in by disseizin that the law
will construe it a disseizin of the fee and abridge the party of
his right, to qualify his wrong.
Now in the case at bar it is not proved of what estate Thomas
Dudley died seized in the premises. His possession does not appear
to have been accompanied with any claim of right to the
inheritance. It might have been an estate for life only, and as
such have had a lawful commencement. If it were intended to be
argued that he had a fee in the premises, it should have been
established by competent proof, that he was in possession, claiming
a fee by right or by wrong. No such fact appears. The only fact
leading even to a slight presumption of that nature is that his
widow took one-third of the rents and profits during her life. But
whether this was under a claim of dower or any other right is not
proved. The circumstance is equivocal in its character, and is
unexplained, and the inference to be deduced from it of a
descendible estate in her husband is rebutted by the fact that
immediately on his death, his son William entered into the
premises, claiming a life estate, and held them during his life as
his own, without any claim on the part of the co-heirs of his
father to share in the estate. There is then nothing in the case
from which it can be judicially
Page 20 U. S. 109
inferred that Thomas was ever seized of an estate of inheritance
in the premises, and of course none of a descent from him to his
heirs.
Then as to the estate of his son William in the premises. It is
argued that William had an estate in fee by right or by wrong. That
if his entry, either in person, or by his guardian, was without
right, it was a disseizin, and invested him with a wrongful estate
in fee. If with right, then it must have been as a co-heir of his
father, and a grant ought to be presumed from the other co-heirs to
him, releasing their title, and confirming his.
The doctrine as to presumptions of grants has been gone into
largely on the argument, and the general correctness of the
reasoning is not denied. There is no difference in the doctrine
whether the grant relate to corporeal or incorporeal hereditaments.
A grant of land may as well be presumed as a grant of a fishery or
of common or of a way. Presumptions of this nature are adopted from
the general infirmity of human nature, the difficulty of preserving
muniments of title, and the public policy of supporting long and
uninterrupted possessions. They are founded upon the consideration
that the facts are such as could not, according to the ordinary
course of human affairs, occur unless there was a transmutation of
title to or an admission of an existing adverse title in the party
in possession. They may therefore be encountered and rebutted by
contrary presumptions, and can never fairly arise where all the
circumstances are perfectly consistent with the nonexistence of a
grant.
Page 20 U. S. 110
A fortiori, they cannot arise where the claim is of
such a nature as is at variance with the supposition of a grant. In
general, it is the policy of courts of law to limit the presumption
of grants to periods analogous to those of the statute of
limitations in cases where the statute does not apply. But where
the statute applies, it constitutes ordinarily a sufficient title
or defense, independently of any presumption of a grant, and
therefore it is not generally resorted to. But if the circumstances
of the case justify it, a presumption of a grant may as well be
made in the one case as in the other, and where the other
circumstances are very cogent and full, there is no absolute bar
against the presumption of a grant within a period short of the
statute of limitations.
See Phillips on Evidence ch. 7, s.
2, 126.
Foley v. Wilson, 11 East 56.
If we apply the doctrines here asserted to the case at bar, we
may ask in the first place what ground there is to presume any
grant of the premises to William Dudley, and if any, what was the
quantity or quality of his estate? It has been already stated that
there is no sufficient proof that his father died seized of a
descendible estate in the premises, and if so, the entry of William
by his guardian or in person cannot be deemed to have been under
color of title as heir, and in point of fact he never asserted any
such title. For the same reason, no estate can be presumed to have
descended to his co-heirs, and if so, the very foundation fails
upon which the presumption of a grant from them to William can be
built, for if they had no title and asserted no title, there is no
reason
Page 20 U. S. 111
to presume that he or they sought to make or receive an
inoperative conveyance. There is no pretense of any presumption of
a grant in fee from any other person to William, and as there is no
evidence of any connection with the will of Governor Dudley or of
any claim of title under it by William, there does not seem any
room to presume that he was in under that will upon mistaken
constructions of his title derived from it. There is this further
difficulty in presuming a grant from the co-heirs to William that
at the time of his own entry as well as that of his guardian, all
of them were under age, and incapable of making a valid conveyance.
During this period, therefore, no such conveyance can be presumed,
and yet William, during all this period, claimed an exclusive
right, and had an exclusive possession of the whole to his own use,
and his subsequent possession was but a continuation of the same
claim without any interference on the part of the co-heirs. In
point of fact, the youngest brother arrived at age about the time
of William's death, and as to two others of the co-heirs, the
statute of limitations of Connecticut as to rights of entry would
not then run against them. The presumption of a grant from them is
therefore in this view also affected with an intrinsic
infirmity.
In addition to all this, William never claimed any estate in fee
in the premises. His declaration uniformly was that he had a life
estate only, and that upon his death they would descend to his son
Joseph. Of the competency of this evidence to explain the nature of
his possession and title no doubt can reasonably be entertained.
His title being evidenced
Page 20 U. S. 112
only by possession, it must be limited in its extent to the
claim which he asserted. If indeed it had appeared that he was in
under a written title which gave him a larger estate, his mistake
of the law could not prejudice him, but his seizin would be
coextensive with and a remitter to that title. But there is no
evidence of any written title or of any mistake of law in the
construction of it. For aught that appears, William's estate was
exactly what he claimed, a life estate only, and the inheritance
belonged to his son Joseph. It is material also to observe that the
acts of the parties and the possession of the estates during the
period of nearly fifty years are in conformity with this
supposition and at war with any other. Why should William's
brothers and sisters have acquiesced in his exclusive possession
during his whole life if the inheritance descended from their
father? Why should Joseph's brothers and sisters have acquiesced in
his exclusive possession during a period of twenty-five years
without claim if their father William was seized of the
inheritance? Why should the guardians of William and Joseph have
successively entered into the premises, claiming the whole in right
of their respective wards, if their title was not deemed clearly
and indisputably an exclusive title or if they were in by descent
under the title of their fathers? If, indeed, a presumption of a
grant is to be made, it should be of a grant conforming to the
declarations and acts of possession of the parties during the whole
period, and if any grant is to be presumed from the facts of this
case, it is a grant of a particular estate to William, with a
remainder of the
Page 20 U. S. 113
inheritance to Joseph, or in the most favorable view of an
estate tail to William, upon whose death the estate would descend
to Joseph, as his eldest son,
per formam doni. If Thomas,
the grandfather, were proved to have been the owner of the fee,
there is nothing in the other circumstances which forbids the
presumption of such a grant from him; but as the cause now stands,
it may as well have been derived from some other ancestor or from a
stranger. It is therefore the opinion of this Court that the
circuit court erred in directing the jury that William, by mistaken
constructions of the will of Governor Dudley, might have claimed an
estate for life in the premises and that such mistake would not
operate to defeat his title by possession, for there was no
evidence that William ever claimed under that will, and also erred
in instructing the jury that it was authorized to presume a grant
by the children of Thomas to William. The compromise entered into
by Joseph with two of his brothers is not thought to change the
posture of the case, because that compromise was made with an
explicit denial of their right and is therefore to be considered as
an agreement for a family peace.
The other question in the cause is of great importance, and if
decided one way will probably put an end to further controversy. It
has been very fully and ably argued at the bar, and does not, from
anything before us, appear to have received a final adjudication in
the state courts of Connecticut. It must therefore be examined and
decided upon principle. By the laws of Connecticut (as has been
already
Page 20 U. S. 114
stated), the real estate of an intestate is liable to be sold
for the payment of debts where there is a deficiency of personal
estate. The administrator, in virtue of his general authority, has
no right to meddle with the real estate, but derives this special
authority from the order of the court of probates, which possesses
jurisdiction to direct a sale, upon a proper application, and proof
of the deficiency of the personal assets. This power or trust, call
it which you please, when granted or ordered, is not understood to
convey any estate to the administrator in the lands of the
intestate. He derives simply an authority to sell from the court,
and upon the sale makes a conveyance to the purchaser, and the
estate passes to the purchaser upon his entry into the land by
operation of law, so that he is in under the estate of the
intestate. As long as an administration legally subsists or may be
legally granted, this power over the land may be exercised if the
land remains in possession of the heirs, and it is not defeated
simply by an alienation or disseizin of the heirs.
Drinkwater
v. Drinkwater, 4 Mass. 354, 359; Jenk.Cent. 184, pl. 85. By
analogy also to other cases of a like nature at the common law, as
for instance a power given by a will to executors to sell an estate
for payment of debts, it may be true that a descent cast will not
toll an entry, for there is a distinction between a right of entry
and a mere power. Litt. § 169; Jenk.Cent. 184, pl. 85; Bro.Abr.
Devise, pl. 36; Litt. § 391; Co.Litt. 240. The former is in general
barred by a descent cast, but the
Page 20 U. S. 115
latter is not. On this, however, it is not necessary to express
any opinion.
It does not appear that at the time of granting the
administration of this estate, any statutable limitation of the
period within which an original administration might be granted
existed in Connecticut, though a limitation generally to seven
years after the death of the party has been since introduced.
[
Footnote 1] And the present
administration, though granted after the lapse of 28 years from the
death of William Dudley, must be considered as valid, it having
been allowed by a court of competent and exclusive jurisdiction,
whose decision we are not at liberty to review.
Still, however, the question recurs whether a power of sale thus
derived under the law, and not from the act of the party, is to be
considered as a perpetual lien on the land of which the intestate
died seized, and capable of being called into life at any distance
of time, and under any circumstances, whatever may be the mesne
conveyances, disseizins, or descents which may have taken place. If
it be of such a nature, great public mischiefs must inevitably
occur, and many innocent purchasers, fortified as their possession
may be by length of time against all interests in the land, may yet
be the victims of a secret lien or power which could not be
foreseen or guarded against and which may spring upon their titles
when the original parties to the transactions are
Page 20 U. S. 116
buried in the grave. The principles of justice would seem to
require that the law should administer its benefits to those who
are vigilant in exercising their rights, and not to those who sleep
over them. It is always in the power of creditors to compel an
administration to be taken upon an estate by application to a court
of probates, and if the next of kin decline the office, it is
competent for the court to appoint any other suitable person. So
that if creditors do not choose to act, the loss or injury ought
rather to fall on them than on those who are meritorious purchasers
without the means of knowledge to guard them against mistake. A
power to sell the estate for payment of debts, being created by the
law, ought not to be so construed as to work mischiefs against the
intent of the law. It ought to be exercised within a reasonable
time after the death of the intestate, and gross neglect or delay
on the part of the creditors for an unreasonable time ought to be
held to be a waiver or extinguishment of it. This appears to be the
doctrine in Massachusetts,
Gore v. Brazier, 3 Mass. 523,
542;
Wyman v. Brigden, 4
id. 150, 155, whose laws
on this subject are like those of Connecticut, and is so just in
itself that unless prevented by authority, we should not hesitate
to adopt it. There is no decision in Connecticut which, to our
knowledge, controverts this doctrine, and it stands supported by
the very learned opinion of her late Chief Justice in the case of
Sumner v. Childs, 2 Conn. 607. There
Page 20 U. S. 117
are many cases where indisputable liens on land may be lost by
lapse of time and transmutation of the property. And even the
rights of mortgagors to redeem and of mortgagees to enforce payment
out of the land may be lost by presumptions or laches arising from
time.
What then is to be deemed a reasonable time for the exercise of
this power to sell? It has been argued that the case of such a
power is within the purview of the statute of limitations of
Connecticut, and if not, that the reasonable time for its exercise
is to be fixed by analogy to that statute. The statute provides
that no person shall, at any time thereafter, make entry into any
lands or tenements, but within fifteen years next after his right
or title shall first descend or accrue to the same, with a saving
in favor of infants,
femes covert, &c., of five years
after the removal of the disability. [
Footnote 2] The language of the statute would seem to
apply merely to rights of entry, but it has been the uniform
construction of the courts of the state that it also takes away all
rights of action, and therefore bars all real actions after that
period. [
Footnote 3] Now the
argument at the bar is that the words right or title first accrued,
refer solely to the commencement of the original title under which
the party claims, and not to his own accession to the title. But it
appears to us that this
Page 20 U. S. 118
construction of the statute cannot be maintained. The title
against which the statute runs is a present right of entry, and it
is admitted that when once it so begins to run, no devolution of
the same title, and no supervening disability, will stop its
operation. When, therefore, it speaks of a right or title first
accrued, it means a new right or title first accruing to the party,
and not the transfer of an old title. Against titles
in
esse at the time of the adverse possession the statute was
intended to run, but titles which should afterwards come
in
esse, were not within the provision of the statute, because
they could not be enforced within the period and it would be unjust
to bar future rights in respect to which there could by no
possibility be an imputation of laches. And such has been the
uniform construction of all the statutes which contain a clause of
this nature.
Stanford's Case, cited at the bar and
referred to in Cro.Jac. 61, is directly in point, and it would be
easy to multiply instances under the statute of limitations and the
statute of fines to the same effect. [
Footnote 4] If, indeed, the construction were otherwise,
it would not help the present case, for the right of entry of the
purchaser did not accrue until after the conveyance to him, and if
he should then be deemed in under the estate of the intestate and
in privity of title, it would be a new right growing out of the
exercise of a power conferred by law, and no more barred than a
right of entry upon an extent after a fine levied,
Page 20 U. S. 119
and five years past, where the judgment was obtained before the
fine. [
Footnote 5]
But we do think it is a case clearly within the same equity as
those which are governed by the statute of limitations, and that by
analogy to the cases where a limitation had been applied to other
rights and equities not within the statute, the reasonable time
within which the power should be exercised ought to be limited to
the same period which regulates rights of entry. It would be
strange indeed that when the estate of the heirs in the land, which
is but a continuation of the estate of the intestate, is
extinguished by the statute, the estate should still be considered
as a subsisting estate of the intestate himself. That the
administrator should possess a power over the property which the
intestate could not possess if living, and that a lien created by
operation of law should have a more permanent duration of efficacy
than if created by the express act of the party. The convenience of
mankind, the public policy of protecting innocent purchasers, and
the repose of titles honestly acquired require some limitation upon
powers of this nature, and we know of none more just and equitable
than this, that when the right of entry to the land is gone, or the
estate is gone by an adverse possession from those who held as
heirs or devisees, the whole interest in the land, the power of the
administrator to make sale of the land for payment of debts, is
gone also. In this opinion we do but follow the doctrine which has
been distinctly intimated
Page 20 U. S. 120
both in the Massachusetts and Connecticut courts.
Gore v.
Brazer, 3 Mass. 523, 542;
Wyman v. Brigden, 4 Mass.
150, 155;
Sumner v. Childs, 2 Conn. 607.
The remaining consideration under this head is whether the
possession of Joseph Dudley can be considered as an adverse
possession so as to toll the right of entry of the heirs, and
consequently extinguish by the lapse of time their right of action
for the land, as well as extinguish by analogy of principle the
power of the administrator to sell the land. It is said that the
entry of Joseph into the premises is consistent with the potential
right of the creditors; that he had a right to enter as a co-heir
of his father, and if he entered as co-heir, his possession was not
adverse, but was a possession for the other heirs and creditors,
and he could not afterwards hold adversely or change the nature of
his possession, for the creditors might always elect to consider
him their trustee. There is no doubt that in general the entry of
one heir will enure to the benefit of all and that if the entry is
made as heir, and without claim of an exclusive title, it will be
deemed an entry not adverse to, but in consonance with, the rights
of the other heirs. But it is as clear that one heir may disseize
his co-heirs and hold an adverse possession against them as well as
a stranger. And notwithstanding an entry as heir, the party may
afterwards, by disseizin of his co-heirs, acquire an exclusive
possession upon which the
Page 20 U. S. 121
statute will run. An ouster or disseizin is not, indeed, to be
presumed from the mere fact of sole possession, but it may be
proved by such possession accompanied with a notorious claim of an
exclusive right. And if such exclusive possession will run against
the heirs, it will, by parity of reason, run against the creditors.
For the heirs,
qua heirs, are in no accurate sense in the
estate as trustees of the creditors. They hold in their own right
by descent from their ancestor, and take the profits to their own
use during their possession, and the most that can be said is that
they hold consistently with the right of the creditors. The
creditors, in short, have but a lien on the land which may be
enforced through the instrumentality of the administrator acting
under the order of the court of probates.
But in order to apply the argument itself, it is necessary to
prove that the ancestor had an estate of inheritance and that the
party entered as heir. Now in the case at bar, all the
circumstances point the other way. There is not, as has been
already intimated, any proof that William Dudley died seized of an
inheritance in the land, and there is direct proof that he asserted
the inheritance to be in his son Joseph, and the entry of the
guardian of Joseph as well as his own entry after his arrival of
age was under an exclusive claim to the whole, not by descent, but
by title distinct or paramount. There is certainly no incapacity in
an heir to claim an estate by title distinct or paramount to that
of his ancestor, and if his possession is exclusive under such
claim, and he holds all other persons out until the statute
period
Page 20 U. S. 122
has run, he is entitled to the full benefit and protection of
the bar. It appears to us, therefore, that the jury ought to have
been instructed that if it was satisfied that Joseph's possession
was adverse to that of the other heirs, and under a claim of title
distinct from or paramount to that of his father, during his 25
years of exclusive possession, the entry of the purchaser, under
the administrator's sale, was not congeable, and that the power of
the creditor over the estate was extinguished. There was therefore
error in the opinion of the court to the jury that as against the
creditors of William Dudley, neither Joseph nor the tenant had
gained any title to the land in controversy by possession.
For these reasons the judgment of the circuit court must be
Reversed and the cause remanded with directions to the court
to order a venire facias de novo.
[
Footnote 1]
See the statute in Revised Laws of Conn., tit. 59, sec.
1, p. 309; 1 Swift's System 335.
[
Footnote 2]
See the statute in Revised Laws of Conn. tit. 59, § 1,
309; 1 Swift's System 335.
[
Footnote 3]
1 Swift's System 335, 336;
Sumner v. Child, 2 Conn.
607, 615.
[
Footnote 4]
Bac.Abr. limitations, B;
id., Fines and Recoveries, F;
Comyn's Dig. Fine, K 2.
[
Footnote 5]
Bac.Abr. Fines, &c., F. cites 1 Mod. 217.
