275 Pa. 380 | Pa. | 1923
Opinion by
These two appeals are by different defendants, from the same judgment in an action of ejectment, one taken by an alleged owner of the property and the other by tenants under him; a single opinion will suffice for both.
James W. Hutchison, being the owner of a tract of land, entered into an agreement with Cynthia Roach to convey to her a portion of it; she paid a small amount' of down money and agreed to pay the balance of the purchase price when she received an expected pension from the government. She immediately entered into possession of what plaintiffs allege is all the land she was entitled to receive, improved it and lived on it until her death. Four or five years after the purchase, she paid the balance of the consideration and, on September 9, 1897, received a deed from Mr. Hutchison. No new agreement was then entered into, and no change made in the division line between the property she bought' and that which he retained; indeed no dispute, in regard to, this, arose between them, either then or thereafter. Speaking generally, the two acres, the subject of this ejectment, lie south of Fish Creek, hereinafter referred to. After the foregoing conveyance^ the grantor continued in possession of them and of the rest of his farm, until his death on December 1,1893, as did his heirs and their lessees thereafter until the Spring of 1919, when certain of the defendants tore down the fences and took possession.
Two questions were raised at the trial: (1) Did the description of the land in the deed to Mrs. Roach include the two acres? (2) If it did, were plaintiffs nevertheless entitled to recover, because they had held actual, adverse, continued, visible, notorious, distinct and hostile possession of it for more than twenty-one years? Defendants alleged.and plaintiffs denied the tract in
The deed from James W. Hutchison to Cynthia Roach describes the land as being “in Springhill Township, Greene County, Pa., lying on the waters of Fish Creek, bounded and described as follows: Beginning at the creek with Edward Ferguson line North 4° West 127 poles, to a linn comer of Jasper Griffith; thence with said Griffith line South 88y2° West 63 poles to a stake corner of J. W. Hutchison; thence with said Hutchison’s line South 4° East 127 poles to a rock, at the creek, corner of said Hutchison; thence with creek North 88%° East 63 poles to the place of beginning,, containing fifty acres, one rod, strict measure.” It is clear from t'he underscored words above, that Fish Creek was intended to be the southern limit of the land conveyed; we need not determine, however, whether its middle line or its “edge” was to be the boundary, since this inquiry is not suggested in the statement of the questions involved or in the assignments of error.
At the trial, the testimony of defendants’ surveyors showed that they did not begin their surveys “at the creek with Edward Ferguson line” as specified in the deed; neither of them was “governed by any monuments on the ground in making [his] survey,” except a lirm tree, which had no marks on it, and was probably too young to have been in existence at the time of the sale, though they assumed it to be an off-shoot of one that was; and each of them wholly ignored the “rock,” at the “edge of the creek,” and the line “with creek......to the place of beginning.” They gave as their excuse for this, that
On the other hand, the surveyor for plaintiff started his survey at the rock referred to in the deed (which he and witnesses for both parties found no difficulty in discovering, or in identifying the marks on it), and, with the creek as a boundary, ran the southern line along its meanderings, treating the words “thence with the creek” as controlling, rather than the general direction “North 88%° East.” This was clearly correct: Klingensmith v. Ground, 5 Watts 458; Miles Land Co. v. Hudson Coal Co., 246 Pa. 11, 17. In the former case, after stating that, where a stream is given as a boundary, the line should pursue its meanders, the opinion continues: “if the words ‘thence up the creek north,’ do not call for the creek as a boundary, why was the creek mentioned at all? The argument on the other side is, that the course being also given, no more is necessary to close the survey. But if the course were sufficient to express the whole intent, we are unable to conjecture why a natural object should have been employed......It is evident that the word ‘north’ was intended to indicate, not the exact course of the line, but the general course of the stream.”
Perhaps, in view of what has been said, the court below would not have been far wrong if it had given binding instructions for plaintiffs, at least so far as concerns the greater part of the land in dispute; though possibly there was just enough in the case to require the whole question to be submitted to the jury. Assuming this, onr only other inquiry is: Were there such trial errors, if any, in regard to the question of adverse possession, as to compel us to reverse the judgment? We do not think there were.
There is but one assignment of error relates to the evidence; it has no exception to support it, and hence we do not consider it. There was ample evidence, too voluminous to be here quoted, from which, though disputed, a jury could find, as this one did, that the possession of defendants and their predecessors in title never extended south of Fish Creek, and that all the fact's existed which, if the usual rule applies, were sufficient to enable plaintiffs to acquire, by adverse possession, a title to the land in dispute. Defendants claim, however, and this is the principal contention, that the usual rule does not apply, because the controversy here is between grantor and grantee.
It is unquestionably true that the mere retention of possession by a grantor, will not justify the conclusion that his holding is so adverse to the grantee as to give
The statute makes no exception in favor of a vendee (Milnes v. Van Gilder, 197 Pa. 347, 350) and hence where the heirs of the vendor, who owe no duty to the former, maintain a fence around the disputed tract for over twenty-one years (as there was evidence here they did), this is sufficient to establish adverse possession, and “it is not material to inquire whether the fence is on the right line or not”: Reiter v. McJunkin, 173 Pa. 82, 85. If the possession proved is “inconsistent with the possession or right of possession by another” it is sufficient to found á title upon (Sheaffer v. Eakman, 56 Pa. 144, 153), provided it is of such a character (as here plaintiff’s evidence shows it was), as owners of similar
Moreover, the rule contended for has no application, for the further reason that where, as here, long before the deed was made, the parties by their conduct determined where the division line was; the purchaser entered into possession of the part which lay on her side of it1; during her lifetime made no claim to the land in dispute, and after her decease, her devisees and their successors in title were equally silent for a period of more than twenty-one years, though she and they lived on the adjoining land which was purchased, and must have seen the possession and adverse use by the grantor and his heirs, exactly as if no conveyance of it had ever been contemplated; for therefrom a jury might well find the parties had established the division line between the property intended to be sold and that to be retained: Chew v. Morton, 10 W. 321; Hagey v. Detweiler, 35 Pa. 409. All the reasons applicable to the statute apply to such a case; death has closed the mouths of those who knew the facts, and the rule “that actions speak louder than words is sound law, as well as proverbial wisdom” (Graham v. Dempsey, 169 Pa. 460), is peculiarly appropriate.
What has been said renders unnecessary a detailed consideration of the assignments of error bearing on the question of adverse possession. If we assume that one or more of the extracts quoted from the charge would have been erroneous if standing alone, nevertheless, when they are taken in connection with the charge in its entirety, the jury could not possibly have misunderstood the question they were called upon to decide. To hold otherwise would give undue effect to detached sentences, as against the whole tenor of an able charge on the subject.
The judgment of the court below is affirmed.