Doolittle v. Blakesley

4 Day 265 | Conn. | 1810

Braineud, J.

The first question is, whether the admission of the testimony to explain the extent of the deed of 1776 from Moses to Asa was proper ?

The term “ farm,” as to extent, is indefinite and ambiguous. A. grants or devises a farm situated in a particular parish in a particular town. He may own divers farms, or divers tracts of land, in the same parish. Such a grant or devise would not be void for uncertainty. It would not be void merely because from the face of it, it could not be ascertained which farm was intended, or how many of the tracts were meant to be included “in the term “farm.” Here would be an ambiguity arising from facts not in the instrument, which, , found to exist, may be removed'by other evid If a writing be not void upon the face Of it; and if, upon , . ,® , ' , . the lace ol it, the true meaning cannot be collected owing tesóme fact from without, recourse must be had to other, to extra evidence, to the knowledge Of persons and witnesses acquainted with the character and description of the subject matter.

A. devises a farm by the description of his “home farm.” What is meant by home farm, must in many instances be collected from the knowledge of persons acquainted with the devisor’s own understanding of his home farm at the time of making the devise. Whether a’particular piece of land was or was not, in the mind of the devisor, a part of his home farm, must frequently be ascertained from proof other than what arises from the will itself. On this point I would more particularly refer to Lord Cheney's Case, 5 Co. 68. Jones v. Newman, 1 Bl. Rep. 60. Doe, d. Freeland, v. Burt, 1 Term Rep. 701. 703. Curzon et al. v. Lomax, 5 Esp. 60. Adams v. Frothingham, 3 Mass. Rep. 352. and conclude that the admission of the testimony was proper to remove a doubt or explain an ambiguity arising from facts not apparent on the face of the deed.

The other question is, whether the charge of the court to the jury was correct ?

It is stated correctly, that one tenant in common may bring his action when he pleases; that he is not encumbered with his fellow tenant; but that joint tenants must join, and if one be under a legal disability, the whole and entire right is suspended and protected until its removal.

Tenants in common and joint tenants have one quality common to each — unity of possession. Hence it is said, that the possession of one is the possessioh of the other. And the position laid down in Com. Dig. tit. Limitation, 106; B. “That the possession of one joint tenant is the possession of the other, so as to prevent the statute nf ⅛ Imitations,” is not only true as it respect? joint tenant?, but also tenants in common; for in Fairclaim y. Shqekle-ton, S Burr, 2607; it is stated by the counsel, that “ bqth joint tenants and tenants in common have a joint possession; a joint occupation and management of the whole ; that the possession of one is the pospessjon of both* Lord Mansfield, in delivering the opinion of the court, does by no means impeach this doctrine; and, ds between themselves, it is true as to both. One tenant in common in possession is of course in possession for the others, and can never, by that possession, unless it be adverse, gain a title against them: it can never be adverse but by ouster — by some act amounting to a disavowal of the common tenancy, and a denial of entry. At this point in tenancy in common the statute of limitations begins to run, and the tenant in common thus ousted, has his remedy grounded upon his own independent title. In joint tenancy there can be no denial of title; for there is a unity of title, and one joint tenant cannot acquire a title against his fellow tenant by adverse possession; for the title is joint, and neither can bring an action grounded on title against the other.

A. and B. are joint tenants. A. is in possession, and suffers C. a stranger, to possess with him. The rights of B. cannot be affected by the possession of the stranger ; the title and possession of his joint tenant are his title and possession. B. could bring no action on his own independent title against C.

In case of tenants in common, as before observed, the possession of one is the possession of the other as it respects themselves. But as it respects strangers it is totally different. One tenant in common, as it respects his fellow tenant, is always safe in the possession of his fellow tenant, unless ousted. But when disseised, either by a fellow tenant, or a stranger, he has his remedy in his own right upon his own independent title ; and if he will not exercise this right within the 15 years, he must suffer the consequences of an adverse possession, an® lose his estate. ' ’

I am therefore of opinion that the charge was coiv rect*

In this opinion the other judges severally concurred.

New trial not to be granted.