67 Pa. 396 | Pa. | 1871
The opinion of the court was delivered,
A title depending on the bar'of the Statute of Limitation maybe a marketable title which a purchaser will be compelled to accept, provided it clearly appears that the entry of the real owner or owners is barred: Shober v. Dutton, 6 Phila. Rep. 185. As where there is an owner in fee under no disability at the time the title accrues as against whom the statute begins to run and of course continues to run as against all his alienees, whether of particular estates or otherwise, and twenty-one years elapse without entry, or what is equivalent thereto, twenty-two years elapse without an action brought founded upon an entry within the twenty-one years. By the Act of April 13th 1859, § 1, Pamph. L. 603, “ no entry upon lands shall arrest the running of the Statute of Limitations unless an action of ejectment be commenced therefor within one year thereafter.” Even if the owner be tenant in tail, at the time of the decision, and the bar becomes complete as to him, no entry can be made “ by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred; and whensoever the Statute of Limitations shall have begun or shall begin to run against the tenant in tail it shall continue to run against the issue, remainderman or reversioner, unless arrested by the act of the tenant in tail:” § 2 of the same act. If tjie owner, however, should be under a disability at the time the adverse possession commenced, then the Act of April 22d 1856, Pamph. L. 532, applies. The first section of that act provides “that no exception in any Act of Assembly respecting the limitation of actions in favor of persons non compos mentis, imprisoned, femes
The plaintiff below took adverse possession of the premises on March 1st 1840, at which time the right of entry, if the Orphans’ Court sale was defective, was in the heirs-at-law of the Rev. Robert Graham in fee; and thirty years having expired, whether they were then under the .disability or not, all right of entry in them, or any person claiming under them, is barred, unless there has been an entry followed by an action of ejectment, or an action within that period, of which the docket of the Court of Common Pleas, and perhaps of the Circuit Court of the United States, will furnish the necessary negative evidence. Thus qualified and fortified we would he disposed to hold such a title resting on adverse possession to be indubitable, and therefore marketable.
But that which we have found to be a more difficult question to answer in the affirmative is, whether this title is clear of all encumbrances. Andress, the purchaser at the Orphans’ Court sale, paid one-third of the purchase-money in cash, and the balance was a charge upon the estate by the order of the court requiring the execution of a mortgage, and by the execution and recording of the same. According to the case stated, this mortgage was one “ in which Ann Graham, administratrix of Rev. Robert Graham, by her attorneys in fact Washington Ross and Mark A. Hodgson, specially constituted, are, the mortgagees named.” We are not provided with a copy of the mortgage; but we must assume that it is truly described. Now it can hardly be pretended that the receipt of the money, and, the entry of satisfaction by Washington Ross, after the death of Ann Graham, would be sufficient evidence of the extinguishment of the mortgage. But more than twenty-one years have run since the date of it, “ and no payment, claim or demand on account of said mortgage has since been made by any one.” It is contended that this presents a case within the 7th section of the Act of April 27th 1855, Pamph.
Judgment reversed, and now judgment for the defendant on the case stated.
