3 Walker 57 | Pa. | 1854
The Supreme Court reversed the decision of the Court below on September 14,1854, in the following opinion by
In the first assignment of error, the Court of Common Pleas is represented as telling the -jury that they had a .right to
The second assignment does not seem to complain of error in law. The remarks of the judge are merely referred to as “an imaginative perorationf to the error set forth in the- third specification which we proceed to consider. The local history in relation to the lottery, and the contracts for the purchase of lots, is not before us in such a shape, as to form an element in the discussion. Were the facts referred to fully established by evidence, and properly placed on the record, we do not see how they could change the. rights of the parties as finally defined by their conveyances. In 1814 James Bones was the owner of the tract of land, on which he laid out the town of Bath containing 101 lots. He conveyed two of those lots numbered 74 and 75 to different purchasers by metes and bounds. In each deed, there was also a conveyance of “one full equal undivided one hundredth part of the Bath lot," describing it also by metes and bounds, and stating it to contain with its proportion of Washington street 101 59-100 perches of ground more or less. These lots were conveyed “with all privileges, advantages, and appurtenances to the same appertaining. There is nothing in. these deeds which makes the Bath lot appendant or appurtenant to the others. Nor is there anything iii the nature of the property which makes either necessary to the full and free enjoyment of the others. It may be very convenient for the owner of a town lot to have an outlet for pasture or for planting, or to have one with a spring on it for the use of himself, his family, and his cattle. But these circumstances of convenience are.insuffi.7
Judgment reversed and a venire facias de novo awarded.
On the second trial, the Court charged the jury inter alia, as follows: “This was an action of ejectment, brought by Thomas Crawford against Henry Neff and Maria Neff, to recover the two equal undivided one hundredths parts of a lot of land called “The Bath Lot,” not in possession of the
“It is the duty of the Court to give an opinion, whether the facts provided will justify presumption Newman vs. Rutter, 8 W. 54; Stover vs. Whitman, 6 Bin. 419. What circumstance will justify a presumption is a matter of law; McElroy vs. Railroad, 7th B. 538. Where there is a statute of limitation, mere length of time short of the period prescribed by the statute, can never warrant a presumption ; for this would be to presume against the statute; Sumner vs. Child, 2 Conn. 612; 2 Bos. and Puller 206. He also cites 6 Bingham, 173; 22 Pickering, 85; Eldridge vs. Knox; Cowper, 215; Kingston .vs. Lesley, 10 S. and R. 389; 2nd Philips, 364.
The verdict was for the defendant.
’ The plaintiff then took a writ of error, complaining of the •portions of the judge’s charge as above set forth.
The Supreme Court reversed the decision of the Court below, on Feby. 4th, 1856, in the following opinion, per
The statute has established twenty-one years adverse possession as a bar to an action for the recovery of lands. Nothing short of that period, is sufficient. Nothing more than that period is required. To substitute a rule of law, by which a jury might presume a conveyance after a greater lapse of time is useless. If after a less period it would be a repeal of the statute. It seems to follow, that in cases where the statute of limitations might apply, the rules for presuming.a conveyance cannot be substituted by the Courts; Hurst vs. M’Neil, 1 W. C. C. R. 80; Clark vs. Faunce, 4 Pick. 245; Exparte Dean, 2 Cow. 607; Holyoke vs. Haskins, 5 Pick. 27; Bolling vs. Mayor, 8 Rand. 577; Jackson vs. Moore, 6 Cow. 723.
As the statute does not apply to incorporeal hereditaments which are said to lie in grant, the Courts have applied its principles in the form of rules for presuming a grant after an adverse enjoyment for the period prescribed by the statute in cases of land so occupied. But in these cases the analogy requires that the full period of twenty-one years adverse enjoyment shall be shown. Nothing more is required — • nothing less will be sufficient to justify the presumption. In this case the same evidence which was deemed sufficient to defeat the bar under the statute, by showing that the possession was not adverse for the period required, was equally effective in repelling the presumption of a conveyance.
It is true, that if any circumstances exist, tending to justify the belief that a conveyance had in fact been made, but cannot be found, the lapse of time short of twenty-one years enjoy, ment is a circumstance for the consideration of the jury. The existence of the circumstances will be determined by the jury, but their effect, if true, must be passed upon by the Court. If they do not justify the jury in drawing the conclusion, as a matter of fact, that a conveyance had actually been made the Court ought not to submit them to the jury for that purpose; Sharp vs. Thomas, 6 Bing. 419 ; Boston vs. Lecraw, 17 Howard
The evidence stated-in plaintiff’s third bill tended to explain the character of defendant’s possession as a tenant in common with others, and ought to have been received. But, independent of it, .the'defendant had no defence. The Court ought to have given a peremptory direction in favor of the plaintiff’s right to recover.
Judgment reversed, and venire de novo awarded.
Note: — Another case relating to these Bath lots is Olewine vs. Holman, 23 Penna. 279.