1 Blackf. 127 | Ind. | 1821
There are two errors assigned for the reversal of this judgment; first, the refusal of the Court to instruct the jury as required; secondly, the omission in the judgment respecting the term. The declaration contains three several demises to the plaintiff below: one from Bingham; one from Johnson; and one from Wyatt and Howk. If any of these lessors had a right to make the lease at the date of his demise, and had a right of entry at the time this action was commenced, the plaintiff was entitled to recover; and the Court was right in
The defendant was in possession at the date of the deeds to Johnson and to Wyatt and Howie; but whether that possession was hostile to the title of the grantors, is the question upon which this part of the case depends. It is proper to premise, that an adverse possession must, in all cases, be strictly proved; for the-presumption always is, that the possession is in accordance with the regular title, until there is clear and positive evidence to the contrary. This remark is particularly applicable to the situation of the landed property, and the habits of the people, in a
In April, 1819, Johnson conveyed to Wyalt and Howk: hut as Fite was then in possession, claiming as his own, Under a conveyance in fee simple from Lemon, it is contended that such possession was adverse to all the world; and that the'conveyance of the-premises by Johnson ivas, by the common law prohibiting the sale of pretended titles, necessarily void. It has been already observed, that if Lemon continued to occupy after he sold and conveyed to Bingham, it was as a tenant, and must have been for years, at will, or at sufferance. The time has been when such a t'ehant by a feoffment with livery of seisin, would have made his feoffee tenant of the freehold by disseisin; and as such a feoffee would have been a good tenant to a demandant’s praecipe, it follows that he would have had an adverse possession, Co. Litt. 330, b, note 1. But it may well be doubted, whether this doctrine has not passed away with the feudal times in which it originated. Taylor v. Horde, 1 Burr 60. — Doe v. Horde, Cowp.
• The second error assigned is, that judgment is rendered only for damages and costs, instead of being in the usual form, quod querens recuperet lerminum. Such an omission is nothing more than a misprision of the clerk, and might be amended. 2 Vin. 310. — 1 Bac. 165. But this circumstance is not material in the present case; for supposing the judgment to be in the usual form on the general verdict of guilty, it is in favour of the plaintiff for the three distinct terms in the three separate lots of ground described in the several counts of the declaration. The record shows that none of the lessors but Wyatt and Howk, had any title to any of the premises at the time this action was commenced ; and that the verdict and judgment should have been for the defendant on the two first counts, and for the plaintiff on the third one. If the plaintiff would avail himself of any bene
The judgment is reversed, and the proceedings subsequent to the verdict are set aside, with costs. Cause remanded, & c.
It will be observed, also, that the deed from Lemon to Bingham was duly recorded; and therefore Fite was a purchaser with notice. Now, there is no clearer principle than that such a purchaser cannot be in a better situation, than the person from whom he derives his title. Hughes v. Edwards, 9 Wheat. 489, 499.
A father devised a tract of land to his son Ul., his heirs, &c. forever, and another to his son B. his heirs, &c.; adding, that if either died without issue, his part should go to the survivor. id.’s part was sold on judgments and executions against him, and the purchaser took and kept possession. Afterwards «d. died without issue, and B. claiming as survivor, devised the whole of the property. Held, that, in New-York, the limitation over to B. was good as an executory devise; and that the adverse possession of the purchaser at sheriff’s sale, did not prevent the operation of the devise in the will of B. Waring v. Jackson, 1 Peters, 570.
In Pennsylvania there is'the following decision: — Per Curiam, Without entering into the consideration of the law of England, it may be affirmed with certainty that the law as held there was never adopted here. From the equality of condition of persons in this country, there was no danger of maintenance from the interference of powerful individuals; and the abundance and cheapness of land rendered it necessary to admit of its transfer with almost the same facility as personal property. For these reasons, when deeds and devises of land have been considered in our Courts, it has never been made a question whether the grantor or devisor was in or out of possession; and to make it now would disturb what has been looked upon as settled,.. Stoever v. Lessee of Whitman, 6 Binn. 416.