14 Pa. 297 | Pa. | 1850
The opinion of the court was delivered by
— The plaintiff exhibits in evidence a perfect legal title to the premises in controversy. This is admitted, but the defendant relies on the act of limitations. The suit was instituted the 19th March, 1847; the title under which the defendant claims commenced in May, 1825, so that more than twenty-one years elapsed from the commencement of the title until the institution of the suit.
To acquire a right by the act of limitations requires a possession of twenty-one years, actual, visible, continued, notorious, distinct, and hostile. The plaintiff contends he is not barred because the possession was not a continued possession; but that the possession was interrupted in its transmission from Mason, the first intruder, to Hughs the defendant. On this point the cause mainly turns. Mason proves that he made the first improvement in May, 1825; that he deadened trees'in May, grubbed six acres in June, chopped logs and saplings on four acres, burnt brush, chopped logs in July, and that he had a shanty on the place, about ten by twelve feet square. That, being about to leave the property, he told his sister, the widow of Israel Bartlett, that she might take his right and sell it, and if she could get any thing for it, well and good. Whether we consider this transaction as a parol, sale, or gift, or an authority to sell, is, perhaps, of but little consequence. But that it was the latter, in the estimation of the parties, at least, would appear from their subsequent conduct; for, after selling to Hughs, who took possession in pursuance of the contract, she paid over to her brother one-half of the purchase money. Coupling this with the words used, it indicates rather a power of sale than a gift or sale to her. But be that as it may, is the agreement between Mrs. Bartlett and Hughs, subsequently ratified by Mason receiving half the purchase money, possession taken in pursuance of it, to be viewed as a sepa
But, granting that the defence is good in part, the next inquiry will be, to what extent has the defendant a right to take defence. And this will mainly depend on the testimony of Mason; for, if the jury believe that Mason designated his boundaries by the lines of the surrounding surveys, then, as is ruled in Porter v. McGinnis, 1 Barr 416, the defendant has title to all the land contained in those boundaries. But, if otherwise, he can only claim the part he actually enclosed and improved.
Judgment reversed.