| Pa. | Jul 1, 1855
The opinion of the Court--was,delivered by.
If the law. would n.ot take a- simpler-view of human; affairs than the parties, and counsel seem to have taken of this’ case, the administration.of justice would; soon become an imprac-. ticable. thing.
About the beginning of the,-present century a dispute- arose.concerning a tract of, land,- between one Sally Cook and ■ Samuel Parker, each, claiming, to - be entitled-to it-by. a, settlement , right,, The dispute grew- into, .a. quarrel,,.which ended in the forcible evic-;tion of one • party.- an.d;, a, criminal, prosecution against .the - other.; Then they compromised,..Sally Cook, agreeing to take-50 acres,- and relinquish all claim to. the balance,, while P.arker was to get
It is not without some surprise that we find these parties going back to the remote transactions of a former generation, and fishing up matter for a lawsuit from the oblivion of nearly fifty years. It is still stranger to see this done in the form of an ejectment for the whole of the original tract of land, when the plaintiffs are themselves in the actual possession of a part of it, and as much in possession of all the rest as they have been at any time since 1806.
It is now alleged that the compromise under which the parties have been holding ever since its date was procured by fraud, and this question of a fraud committed in 1806 was actually left to a jury in 1855. We know not how true or how false this allegation may be. It is wholly impossible for us to rely, with the least confidence, on the very small amount and imperfect character of the evidence which can now be given of it. Death has disarmed the accused parties of the power of self-defence, and closed the lips of the witnesses who might have testified in their favour. After such a lapse of time no owner of land can be called on to answer a charge impugning his title in that way. If he could, where would be the security of property ? When a person, against whom a fraud has been perpetrated, lies by for twenty-one years without causing it to be investigated, he will not then be permitted to show it. From so long an acquiescence, the presumption of law is conclusive that all was done rightly. For this reason the judge erred when he instructed the jury that they might find for the plaintiffs on that ground.
It seems that one of the defendants, in 1886, got the whole tract patented to himself, including the 50 acres in possession of the plaintiff. This gave him the legal title in trust (to the extent of the 50 acres) for the plaintiffs. But the Court charged that it was an ouster of the plaintiffs, and entitled them to recover in ejectment, although they were not out of the actual possession. The law is otherwise. Ejectment is a possessory action. It is designed to redress no other wrong than that 'of holding the true owner out of possession, and it cannot be maintained for land of which the plaintiff is himself in possession.
We have already said enough to lay the question of fraud out of the case, and to show that the recovery of the one-sixth on that ground was all wrong. On all the other evidence the Court below and the jury came rightly enough to the conclusion that the plaintiffs had no title to more than the 50 acres. Yet a conditional verdict was given for the whole. We say that they could not
If I am in possession of a piece of land, which I hold by an equitable title, and my trustee is in possession of another piece, to which he has a title legal and equitable both, I cannot demand his land from him as a penalty for not making a'legal conveyance of mine.
How the conveyance of the legal title may be enforced is a question which does not arise now, and perhaps never will; for the long possession of the plaintiffs makes them amply secure in the enjoyment of the 50 acres against any claim that can possibly be made.
This curious case has twenty-three errors assigned; but they do not require any further notice than what they have received.
Judgment reversed and venire facias de novo awarded.