41 N.J.L. 527 | N.J. | 1879
The opinion of the court was delivered by
At the trial, sixteen requests to charge were submitted by the plaintiff in error. Exceptions were taken to the refusal to charge in compliance with such requests, and three exceptions were taken specially to the charge as delivered. It will not be necessary to examine the exceptions in detail. They can be disposed of by considering a few propositions, which will embrace all the questions put on the record by the bill of exceptions.
The parties were in fact tenants in common. The defendant entered under deeds of conveyance for the entire estate in fee, containing full covenants of warranty. He purchased the entire estate of his grantors in good faith and for a full consideration, and his deeds were promptly put on record. The judge instructed the jury that in the absence of evidence of bad faith or fraud, the defendant must be considered as a stranger to the plaintiff’s title, and that the strict rule with regard to adverse possession, which governs between tenants in common, did not apply in this case.
Possession of the joint estate by one tenant in common is presumed to be the possession of all. But, nevertheless, one tenant in common may acquire title to the joint estate in entirety by adverse possession. In the acquisition of title by adverse possession the distinction between strangers and tenants in
It is with respect to those two essential qualities of the possession, on which title by lapse of time is founded — hostility in fact to the title of the true owner and notoriety of the adverse claim — that the fact of a co-tenency between the parties becomes an important element. If the parties are strangers in title, possession and the exercise of rights of own-ship are in themselves, in the absence of explanatory evidence, proof of an ouster of the true owner; whereas, in cases of privity of title such as subsists between tenants in common, the acts of possession of one tenant will, in the absence of satisfactory evidence to the contrary, be referred to the community of title, and there must be clearer and more decisive evidence of an ouster by one tenant in common of his associate than is necessary to prove that a person having no right to possession had ousted an owner in severalty. Doe v. Taylor, 5 B. & Ad. 575; Prescott v. Nevers, 4 Mason 330; Freeman on Co-tenancy, § 221. An ouster by a tenant in common does not differ in its nature from any other ouster, in any respect, except in the degree of evidence required; in other cases the assumption of ownership is more clearly adverse; in case of a tenant in common such assumption of ownership, and the acts which indicate it, may be consistent with an acknowledgment of the rights of the co-tenant, and therefore acts which are decisive in the one case are equivocal and insufficient in the other. Newell v. Woodruff, 30 Conn. 492.
The difference in the rules of law applicable to title by ad
The common law gave to a feoffment or demise with livery
Entry by a grantee holding under a deed of conveyance for the entire estate, made by one of the co-tenants and duly placed on record, has all the constituent elements of a disseizin at common law. The conveyance by one tenant of the estate in entirety is decisive of his purpose to appropriate the entire estate to his own use, especially if his deed contain full covenants of seizin and warranty. The entry of the grantee under such a conveyance is equally evincive of his intention to claim the whole to the exclusion of the other co tenants, and if the deed be duly recorded the transaction acquires that notoriety which is equivalent to the notoriety of livery of seizin. The disseizin thereupon becomes complete, and if possession be held continuously thereafter for the period of twenty years by open and notorious acts of ownership, without any interference on the part of the other co-tenants, title to the whole estate may be acquired by adverse possession. Prescott v. Nevers, 4 Mason 326; Bigelow v. Jones, 10 Pick. 161;
The plaintiff in error contends that the defendant haying entered with notice of the actual state of the title, is disqualified from setting up that his entry was adverse to the other co-tenants.
The general doctrine of the law is that fraud in obtaining or continuing possession or knowledge that the party’s claim of ownership is unfounded and wrongful, will not deprive him of his title by adverse possession, or relieve the true owner of the consequences of the bar of the statute of limitations, if the possession of the intruder has in fact been adverse and has been asserted by such open and notorious acts of ownership as are essential in the acquisition of title by adverse possession. Humbert v. Trinity Church, 24 Wend. 587. The common law generally regards disseizin as an act of force, and always as a tortious act. Bradstreet v. Huntington, Peters 402. Disseizin “ever implyeth a wrong.” Co. Litt. 153, b. Possession obtained by a misrepresentation of the nature of the estate under which entry is made being a manifest act of injustice and falsehood, is looked upon as an acquisition of the same nature as a possession gained by open and avowed violence, and so is a disseizin. 3 Bac. Abr. 151. The statute of limitations establishes a peremptory and inflexible rule of law which terminates the rights of the legal owner and protects the disseisor in his possession, not out of regard to the merits of the latter’s title, but for the reason that the real owner has acquiesced in a possession which was adverse for such a length of time that the statute has deprived him of
But a disseizin may be effected by an entry under a deed or a feoffment, which is void in the sense that no title is actually conveyed thereby, and where a party claims a disseizin by virtue of an entry under such a muniment of title, he is claiming the advantage of color of title. In such a case the rule above mentioned is not applied in all its strictness. A party cannot have the advantage of an entry under color of title unless his deed, which gives the colorable title, was obtained bona fide. If obtained by fraud or with knowledge that the grantor had no title to convey, the deed will avail the grantee nothing. Den v. Hunt, Spenc. 487. But a grantee will not be deprived of the legal advantages of an entry under color of title, unless it be for actual fraud on his part. He will’not be prejudiced even though the grantor be justly chargeable with fraud in making the conveyance, unless he personally participated in the fraud. If his deed purports on. its face to convey good title and he has accepted it in good faith, he is entitled to the benefits to be derived from an entry under color of title. Gregg v. Sayre, 8 Peters 244. The proof was full and complete that the defendant purchased and entered into possession on the supposition that he acquired the entire estate by his purchase. . There was no ground even for a suspicion of fraud on his part.
It is contended, on the part of the plaintiff, that the de
The judge refused the plaintiff’s request to charge that the lands being unenclosed wild lands, the defendant could not acquire title by adverse possession to any part of the locus in quo, except only such portion as he had actually held enclosed for twenty years. This refusal gave rise to one of the exceptions on the record, as did also his instruction that “ the rule of law is that when a man enters into possession of land under a deed, and exercises acts of ownership in different places over the tract, his possession will be presumed to be co-extensive with the boundaries of his deed, and his adverse title, if proved, will run according to those boundaries.”
There is, undoubtedly, a distinction between the possession of a mere intruder without pretence of title, and possession by a person who has entered under a colorable, and, of course, defective title. We have seen that entry under color of title confers an advantage in that it operates, under some circumstances, as a disseizin, and determines the quo animo with which the entry was made. Having color of title is also advantageous to the disseisor in giving character to his possession after entry made. The effect of color of title in its
It may be regarded as settled in this state by long usage, sanctioned by a uniform course of practice and supported by judicial decision, that mere entry on waste and uncultivated and unenclosed lands under a survey, or a conveyance or other claim of title, and occasional acts of trespass extending over the period of twenty years, though coupled with the payment of taxes, are not such acts of possession as will deprive the true owner of his title. Such acts are evidence of an adverse claim of title, but they do not amount to that actual, continued and uninterrupted possession which is essential to title by adverse possession, for the reason that- they do not amount to such twenty years’ notice of an adverse possession as is intended by the statute. 4 Griff. Ann. Reg. 1269; Cornelius v. Giberson, 1 Dutcher 1. In Den v. Hunt, Spenc. 487, it was held that actual occupancy by residence, cultivation or enclosure of the whole tract is not required, where the party is in possession under color of title; and that possession of part of the tract included within the boundaries of the paper title by enclosure or cultivation, and the exercise of acts of ownership over the residue, such as was usual with owners of lands’ of that particular description, or as amounted to actual possession, and such as fairly indicated an intention to assert the ownership and possession of the whole, was sufficient evidence of an adverse possession, co-extensive with the boundaries contained in the title deeds to support a verdict to that effect. That case was before the court on a verdict, and was considered upon the weight and effect of the evidence; and the proof, as was remarked by Green, Chief Justice, in Cornelius v. Giberson, was of an actual occupancy during the whole period of part of the tract, and the possession was visible and accompanied by notorious acts of ownership over the entire tract, and was actual and uninterrupted. The case was one in which the acts of ownership over the whole tract were of such a character as to amount to actual possession.
The principles on which title by adverse possession rests,
The fact that the disseisor is in under color of title will not ■dispense with the necessity of possession which is actual, exclusive and notorious as the foundation of his title by adverse possession. Entry under color of title is evidence of the nature of the entry,.and if the deed which gives the colorable title contains a description by metes and bounds, it is evidence of the extent of the claim of title, in virtue of which the entry is made. Color of title will also serve to give character to the possession of the disseisor. But whether there has been a substantial holding co-extensive with the boundaries in the deed, with sufficient notoriety to make title under it corresponding with the description, must be decided as a question of fact, from the nature and condition of the property, and the acts of ownership exercised over it, having regard to their frequency as well as to their character as open and notorious manifestations of the claim of title. Possession as a presumption of law, is intended only in favor of the true owner. Every presumption is in favor of possession in subordination to his title. Color of title and actual occupation by residence, cultivation or enclosure of part of the tract, or by other conspicuous acts of ownership by the disseisor, may serve to give character to his acts of possession over the residue, but will not relieve him from the obligation of satisfying a jury that his possession has been of such a character as, under the circumstances, may reasonably be expected to have informed the true owner of the nature of the possession and the extent of the title proposed to be acquired under it. “I do not think,” says Whitehead,
In a recent case before the House of Lords, the plaintiflsclaimed title to the foreshore lying between the high and low-water mark of the Clyde, a tidal, navigable river, in front of their uplands. The foreshore contained seven hundred and fifty acres, and extended about five miles along one side of the river and about two miles along the other, and was entirely unenclosed. The titles for the baronies contained no express grant of the foreshore, and did not specify the boundaries either of the baronies or of the component parts thereof. The plaintiffs founded their claim of title on the ground that, coupled with their title, they had exercised, from time immemorial, acts of possession over the foreshore. The acts of possession relied on were the pasturing of cattle on the sea greens,, the regular cutting of reeds and sea weeds, taking sand and stones for building purposes, and generally using and permitting to be used, the lands in controversy for all the purposes for which land of that déscription could be used. It was held that such acts of possession for the prescriptive period, gave a right of property in the foreshore. In delivering his judgment, Lord Blackburn uses this language with respect to the effect of acts of possession as evidence of an adverse holding, where the controversy involves the title to an unenclosed tract of considerable dimensions: “Every act shown to have been done on any part of that tract by the barons or their agents, which was not lawful unless the barons were owners of the spot on which it was done, is evidence that they were in possession as owners of that spot on which it was done; no one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circum
The judge properly denied the request to charge that the-defendant’s title by adverse possession must be limited to such parts of the premises as he had actually held enclosed for the-prescriptive period. The observation of the judge with respect to the legal proposition that upon an entry under a deed, and the exercise of acts of ownership in different places over the-tract, possession will be presumed co-extensive with the boundaries of the deed, was erroneous as applied to title by adverse possession. The rule of law that possession, by one having paper title will be presumed to be co-extensive with the boundaries of the title deeds, applies only to the owner of the legal title; There is no such presumption in favor of the disseisor, though he has a color of title. So far as concerns him, possession and its nature and extent are questions of fact, in the determination of which entry and possession under a ’ colorable title has only the office and effect above indicated. Den v. Hunt, supra. But when taken in connection witli other parts of the charge, and as applied to the undisputed facts and the real subject matter in controversy between the parties, the error is not one for reversal.
The defendant purchased in 1851. When the purchase-was made there was upon the Jones parcel a boarding-house capable of accommodating one hundred guests, and on the
The defendant, as the owner of a legal title to an undivided interest, was presumptively in possession of this whole tract, and the only issue capable of contention was whether his possession was in exclusion or in subordination to the title of his co-tenant, and that question was correctly left to the jury.
There is no error apparent on the record, and the judgment should be affirmed.