273 Pa. 580 | Pa. | 1922
Opinion by
The real estate, the subject of this partition proceeding, was held upon a separate use trust for one Sophia P. Taylor for life, with remainder over. On the death of the life tenant, counsel mistakenly advised that Mary Clark was entitled to one-twentieth part of the rents, and in accordance therewith she and her successors (of whom appellant is the last in the chain), received that proportion for twenty-seven years. During all this time appellee, and those through whom he claims, were likewise receiving a portion of these rents. Appellant claims that under the facts stated she acquired title by adverse possession to a one-twentieth interest in the property, and the question we are called upon to decide is whether or not this contention is correct. The court below held it was not, because the rent was paid as the result of a mutual mistake, and since appellee and his predecessors in title were always in possession with her or those
We think the decree is right. At first blush, it might seem as if there was an equity in her claim; for, it may be asked, why should she and they have been allowed to receive the stated proportion of the rents during all those years, unless in recognition of their right to the same proportion of the property? Perhaps it might be replied, why should the mistake in allowing them to have the income, be perpetuated by giving her also a portion of the property itself? but a better answer, to the legal mind, is that the underlying principle which sustains the decree, has been a rule of property for centuries; to change it of our own motion would be judicial legislation of the most objectionable character, would perhaps result in unsettling many existing titles, and would be an exercise of unconferred power, beyond even the power vested in the legislature.
Recognizing this, appellant claims that she relies upon an exception to that underlying principle, which also was established long ago; and we therefore turn to the authorities cited by her counsel, viz: Frederick v. Gray, 10 S. & R. 182; Mehaffy v. Dobbs, 9 Watts 363, and Law v. Patterson, 1 W. & S. 184, to see whether they sustain this contention. They do say (quite unnecessarily, since the facts in each case made it needless so to do) that “When one tenant in common enters on the whole and takes the profits of the whole and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster though none be proved.” Even under this, however, as the court below found, appellant fails in her contention, for neither she nor those through whom' she claims ever did enter upon the whole, or take the profits of the whole or claim the whole exclusively.
Moreover it is a little difficult to understand why her investigation of this interesting and important question ended at the year 1841, when the last of those cases was
This also defeats appellant’s claim, for the court below, which was the trier of the facts, finds against her on this point; and wisely so, for although it might have found an adverse title was acquired, it was not compelled to do so, indeed should not have done so except upon proof of “some clear, positive and unequivocal act [which did not appear] amounting to an open denial of
The same conclusion is expressed in 38 Cyc. 25-30, as follows: “But before a tenant in common can rely on an ouster of his eotenants, he must claim the entire title to the land in himself, and must hold the exclusive and adverse possession against every other person, thus repudiating the relation of cotenancy, for an ouster of one tenant in common by his cotenant is not to be presumed in the absence of some open, notorious act of ouster and adverse possession, and possession by a tenant in common is not adverse as to his cotenants until they are so informed, either by express notice or by acts of such an open, notorious, and hostile character as to be noticed in themselves, or sufficient to put the cotenants upon inquiry which if diligently pursued will lead to actual knowledge, the acts and declarations of a tenant in common, intended to show his adverse holding, so as to entitle him to the benefit of the statute of limitations, being construed more strongly against him than such acts and declarations would have been construed had there been no privity.” In slightly different language this is likewise so stated in 7 R. C. L. 847.
In the instant case all the facts appearing on this record would have been necessary to sustain appellant’s claim, if the suit were one where appellee had been entirely out of possession during the whole time the title by adverse possession was alleged to have been accruing; hence for this reason also her claim falls. But even this is not all; for where, as here, both parties are in possession and through a mutual mistake one receives a share of the net rents to which she was not entitled, her entry was not and could not be adverse; yet no such title could accrue unless the possession had been open, notorious, adverse, continuous and hostile. Hence in Calhoun v. Cook, 9
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.