5 L. Ed. 398
U.S.
1822
Mr. Justice Story

delivered the opinion of the Court.

The principal questions which have arisen, and have been argued here, upon the instructions given by the Circuit Court, and to which aloné the Court deem' it necessary to direct their attention, are, First, whether upon the facts stated, a legal presumption exists, that William Dudley died seised of. an estate of inheritance in the demanded premises ; and, if so. Secondly, whethéran exclusive possession of the demanded premises,-by Joseph Dudley , and. his grantees, after the death of William, under an adversary claim, for thirty years, is a . bar to the entry and title of the demandants under the administration sale.

It is to be considered, that no-paper, title, of any sort, is shown in William Dudley, or his son Joseph. Their title, whatever it may be, rests upon possession ; and the nature and extent of that possession must be judged of by the acts and circumstances which accompany it, and qualify, explain, or control it. Undoubtedly, if a person be found in possession of land, claiming it as his own, in fee, it is prima facie evidence of his ownership, and seisin of the inheritance. But, it is not the possession alone,, but the possession accompanied with the claim,.of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, eviden ces no more than the mere fact of present occupation, by right; for the law will not presume a wrong; and that possession is just as consistent with a pregent iáterest} under a lease for years or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances, what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law go in his favour. And the declarations of the party, while in possession, equally with his acts, must be good evidence for this purpose. If he claims only an estate for life, and that is consistent with his possession, the law will not, upon the mere fact of possession, adjudge him to be in under a higher right, or a larger estate. If, indeed, the party be in urider title, and by mistake of law, he supposes himself possessed of a less estate in the land than really belongs to him, the law will adjudge him in possession of, and remit him to, his full right and title. For. a mistake of law shall not, in such case, prejudice the right of the party, and his possession, therefore, must be held co-extensive with his right. This is the doctrine in Little-ion, (s. 695.) cited at the bar ; and better authority could not be given, if, indeed, so obvious a principle of justice required any authority to support it. But there the party establishes a title in point of law greater than his. claim ; whereas, in the case now supposed, the party establishes nothing independent of his posséssion, and that qualified by his own acts and declarations. This is the distinction between the cases, and accounts at once for the different principles of law applicable to them.

It has also been argued at the bar, that a person . .. .. 7 .. who commits a disseisin cannot qualry his own wrong, but must be considered as á disseisor in fee. This is generally true ; but it is a rule introduced for the benefit of the disseisee, for the sake of electing his remedy. For if a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, or as a special occupant, where he is not entitled so to claim, if he be a disseisor at all, it is only at the election of the disseisee. a There is nothing in the law which prevents the disseisee from considering such a person as a mere trespasser, at his election ; or which makes such an 'entry, under mistake for a limited estate, a disseisin in fee absolutely, and, at all events, so that a descent cast would toll the entry of the disseisee. But, were it otherwise, in order to apply the doctrine at all, it must appear, that the’party found in possession entered without right, arid was, in fact, a disseisor ; for if his entry were congeable, or his possession lawful, his entry and possession will be considered as limited by his right. For the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, Until the contrary appears. When, therefore, a naked possession is in proof, unaccompanied by evidence, as to its origin, it will be deemed lawful, and co-exténsive with the right set up by the party. If the party, claim only a limited estate, and not a fee, the law will not, contrary to his intentions, .enlarge it to a fee. And it is only when the party is proved to be in by disseisin, that the law will construe it a disseisin of the fee, and abridge the party of his right, to qualify his wrong.

Now, in the case at bar, it is not proved of what estate Thomas Dudley died seised in the premises. His possession does not appear to have been accompanied "with any claim of right to the inheritance. It might have been an estate for life only, and as such, have had a lawful commencement. If it were intended to be. argued, that he . had a fee in the premises, it should have been established by competent proof, that he was in possession, claiming a fee by right, or by wrong. No such fact appears. The only fact, leading even to a slight presumption of that nature, is, thát his widow took one third of the rents and profits during her life. But whether this was under a claim of dower, or any other right, is not proved. The circumstance is equivocal in its character, and is unexplained ; and the inference to be deduced from it, of a descendible estate in her husband, is rebutted by the fact, that immediately on his death, his son William entered into the premises, claiming a life estate, and held them during his life, as his own, without any claim on the part of the co-heirs of his father, to share in the estate. There is then nothing in the case, from which it can beju dieially inferred, that Thomas was ever seised of an estate: of inheritance in the premises, and, of course, none of a descent from him to his heirs.

Then, as to the estate of his son William in the premises. It- is argued, that William had an estate in fee, by right or by wrong. That if his entry, either in person, or by his guardian, was. without right, it was a disseisin, and invested him with a wrongful estate in fee. If with right, then it must have been as a co-heir of his father, and a grant ought to be presumed from the other co-heirs to him, releasing their title, and confirming his.

The doctrine, as to presumptions of grants, has been gone into largely, on the argument, and the general correctness of the reasoning is not denied. There is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed, as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as. could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions ; and can never fairly arise where all the circumstances are perfectly consistent with the non-existence of a grant : A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a ... ... grant. In general, it is the policy or courts or law, tQ jjm-t tjje presumption of grants to periods analogous to those of- the statute or limitations, m cases 0 where .the statute does not apply. But where the statute applies, it constitutes, ordinarily, a sufficient title or defence, independently of any presumption of a grant, and, therefore, it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the.other ; and where the other cireutnstances are very cogent and full,, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations. a

If we apply the doctrines here asserted to the case at bar, we may ask, in the first place, what ground there is to presume any grant of the premises to William Dudley, and if any, what was the quantity or quality of his estate ? It has been already stated that there is no sufficient proof that' his father died seised of a descendible estate in the premises ; and if so, the entry of William by his guardian, or in person, cannot be deemed to have been under colour of title as heir ; and in point of fact he never asserted, any such title. For the same reason, no estate can be presumed to have descended to his co-heirs; and if so, the very foundation fails upon which the presumption of a grant from them to William can be built; for if they had no title, and asserted no title, there is no reason to presume that he or they sought to make or receive an inoperative conveyance. There is no pretence of any presumption of a grant in fee from any other person to William ; and as there is no evidence of any connexion with the will of Governor Dudley, or of any claim of title under it by William, there does not seem any room to presume that he was in under that will, upon mistaken constructions of his title derived from it. There is this further difficulty in presuming a grant from the co-heirs to William, that at the time of his own entry, as well as that of his guardian, all of them were under age, and incapable of making a valid conveyance. During this period, therefore, no such conveyance can be presumed : and yet William, during all this period, claimed an exclusive right, and had an exclusive possession of the whole to his own use ; and his subsequent possession was but a continuation of the same claim without any interference on the part of the co-heirs. In point of fact the youngest brother arrived at age about the time of William’s death; and as to two others of the co-heirs, the statute of limitations of Connecticut, as to rights of entry, would not then run against them. The presumption of a grant from them is therefore in this view, also, affected with an intrinsic infirmity.

In addition to all this, William never claimed any estate in fee in the premises. His declaration uniformly was, that he had a life estate only, and that upon his death they would descend to his son Joseph. Of the competency of this evidence to explain the nature of his possession and tiller, no doubt can reasonably be entertained. His title being evidenced only by possession, it must be limited in its extent to the claim which he asserted. If, indeed, it had appeared that he was in under a written title which gave him a larger estate, his mistake of the law could not prejudice him; but his seisin would be coextensive with, and a remitter to that title. But there is no evidence of any written title, or of any mistake of law in the construction of it. For aught that appears, William’s estate was exactly what he claimed, a life estate only, and the inheritance belonged to his son Joseph. It is material also to observe, that the acts of the parties, and the possession of the estates during the period of nearly fifty years, are in conformity with this supposition, and at war with any other. Why should William’s brothers and sisters have acquiesced in his exclusive possession during his whole life, if the inheritance descended from their father,? Why should Joseph’s brothers and sisters have acquiesced in his exclusive possession during a period of twenty-five years without, claim, if their father William was seised of the inheritance ? Why should the guardians of William and Joseph have successively entered into the premises, claiming the whole in right, of their respective wards, if their title was not deemed clearly and indisputably an exclusive title, or if they were in by descent under the title of their fathers ? If, indeed, a presumption of a grant is to be made, it should be of a grant conforming to the declarations and acts of possession of the parties during the whole period: arid if any grant is to be presumed from the facts of this case, it is a grant of a particular estate to William, with a remainder of the inheritance to Joseph, or in- the most favourable view of an estate tail to William, upon .whose death the estate would descend to Joseph, as his oldest son, per formara doni. If Thomas, the grand father, were proved to have been the owner of. the fee, there is nothing in the other circumstances which forbids the presumption of such a-grant from him ; .but as the cause now stands, it may as well have been derived from some other ancéstor, or from a .stranger. It is therefore the opinion of. this Court, that the Circuit Court erred- in directing, the jury that William, by mistaken constructions of the will of. Governor Dudley, might have claimed an estate for life in the premises, and that such mistake would not operate to defeat his title by possession, for there was no evidence that William ever claimed under that will; and also erred in instructing the jury, that they were authorized to presume a grant by the children of Thomas,to William. The compromise entered into by Joseph with two of his brothers is not thought to change the posture of the case, because that compromise was made with an explicit denial of their right; and is therefore, to be considered as an agreement for a family peace.

The other question in the cause is of great importance, and if decided one way will probably put an end to further controversy. It has been very fully and ably argued at the bar, and does not, from any thing before us, appear to have received a final adjudication in the State courts of Connecticut. It must therefore be examined and decided upon principle. By the laws of Connecticut, (as has been al ready stated,) the real estate of an intestate is liable to be sold for the payment of debts, where there is a deficiency of personal estate. The administrator ^ vjrtue 0|- |jjs generai authority, has no right to meddle with the real estate: but derives this special authority from the order of the Court of Probates, which possesses jurisdiction to direct a sale, upon a proper application, and proof of the deficiency of the personal assets. This power or trust, cali it which you please, when granted or ordered, is not understood to convey any estate to the administrator in the lands of the intestate. He derives simply an authority to sell from the Court, and upon the sale makes a conveyance to the purchaser; and the estate passes to the purchaser upon his entry into the land by operation of law, so that he is in under the estate of the intestate. As long as an administration legally subsists, or may be legally granted, this power over the land may be exercised, if the land remains in possession of the heirs; and it is not defeated simply by an alienation or disseisin of the heirs. a By analogy, also, to other cases of a like nature, at the common law, as, for instance, a power given by a will to executors to sell an estate for payment of debts, it may be true that a descent cast will not toll an entry, for there is a. distinction between a right of entry, and a mere power. b The former is in general barred by a descent cast; but the latter is not. On this, however, it is not necessary to express any opinion.

It does not appear that at the time of granting the administration on this estate, any statuteable limitation of the period within which an original administration might be granted, existed in Connecticut, though.a limitation generally to seven years after the death of the party has been since introduced. a And the present administration, though granted after the lapse of 28 years from the death of William Dudley, must be considered as valid, it having been allowed by a Court of competent and exclusive julisdiction, whose decision we are not at liberty to review.

Still, however, the question recurs, .whether a nower of sale, thus derived under the law, and not r ,. from the act of the party, is to be considered as a perpetual lien on the land, of which the intestate died seised, and capable of being called into life at any distance of time,.and under any circumstances, whatever may be the mesne conveyances, disseisins, or descents, which may have taken place. If it be of such a nature, great public mischiefs must inevitably occur, and many innocent purchasers, fortified as their possession may be, by. length of time, against all interests in the land, may yet be the victims of a secret lien, or power, which could not be forseen or guarded . against, and which may spring upon their titles when the original parties to the transactions are buried in the grave. The principlés of justice would seem to require, that the law should administer its 1 . ' . benefits to those who are vigilant in exercising their rights, and not to those who sleep over them. It is always in the power of creditors to compel an administration to be taken upon an estate by application to a Court of Probates; and if the next of kin decline the office, it is competent for the Court to appoint any. other suitable person. So that, if creditors do not choose to act, the loss or injury ought rather to fallón them, than on those who are meritorious purchasers without the means of knowledge to guard them against mistake. . A power to sell the estate for payment of debts being created by the law, ought not to be so construed as to work mischiefs against the intent of the law;. It ought to be exercised within.a reasonable time after the death of the intestate : and gross neglect or delay on the part of the creditors fdr an unreasonable time, ought to be held to be a waiver or extinguishment of it. This appears to be the doctrine in Massachusetts; a whose laws on this subject are like those of Connecticut, and is so just in itself, that unless prevented by authority, we should not hesitate to adopt it. There is no decision in Connecticut, which, to our knowledge, controverts this doctrine; and it stands supported by the very learned opinion of her late Chief Justice in the case of Sumner v. Childs. b There are many cases where indisputable liens on land may be lost by lapse of time, and transmutation of the J . , . . . r property. And even the rights of mortgagors to redeem, and of mortgagees to enforce payment out of the land, may be lost by presumptions, or laches arising from time.

What then is to1 be deemed a reasonable time for the exercise of this power to Sell? It has been argued that the case of such a power is within the purview of the statute of limitations of Connecticut ; and if not that the reasonable time for its exercise is to be fixed by analogy to that statute. The statute provides that no person shalj> at any, time thereafter, make entry into any lands or tenements, but within fifteen years next after his right- or title shall first descend or accrue to the same, with a saving in favour of infants, femes covert, &c. of .five years after the removal of the disability. a The language of the statute would seem to apply merely to rights of-entry; but it has been the uniform construction of the Courts of the State, that it also takes away all rights of action, and,, therefore, bars all real actions after that period.'’ Now, the argument at the bar.is, that the words right or title first-accrued, refer solely to the commencement of the original title under which the party claims, and not to his own accession to the title.. But it appears to us, that this construction of the statute cannot be maintained. The title against which the statute runs, is a present °f entry; and it is admitted, that when once it so begins to run, no devolution of the same title, and no supervening disability, will stop its operation. When, therefore, it speaks of a right or title first accrued, it means a new right of title first accruing to. the party, and not the transfer of an old title. Against titles, in esse, at the time of the adverse possession, the statute was intended to run; but titles which should . afterwards come in esse, were not within the provision of the. statute, because they could not be enforced within the period, and it would be unjust to bar future rights in rtespect to which there couldj by no possibility, bé art,imputation of laches. And such has been the Uniform construction of all the statutes which contain a clause of. this nature. Stcinford’s case, cited at the bar, and referred to in Cro. Jac. 61., is directly in. point; and it would be easy to multiply instances under the statute of limitations, and the statute of fines, to the same effect a 1 If, indeed, the constructiori were otherwise, it Would not help the present case, for the right of entry of the purchaser did not accrue until after the conveyance to Him, and if he should then be deemed in under the estate of the intestate, and in privity of title, it would be a new right growing out of the exercise of a power conferred by law, and no more barred than a right of entry upon an extent after a fine le vied, and five years past, where the judgment was obtained before the fine. a

But we do think it is a case clearly within the same equity as those which are governed by the statute of limitations; and that by analogy to the cases where a limitation has been applied to other rights and equities not within the statute, the reasonable time within which the power should be exercised, ought to be limited to the same period which regulates rights of entry. It would be strange, indeed, that when the estate of the heirs in the land, which is but a continuation of the estate of the intestate, is extinguished by the statute, the estate should still be considered as a subsisting estate of the intestate himself. That the administrator should possess a power over the-property which the intestate could not possess if living; and that a lien created by operation of law should have a more permanent dura tion of efficacy, than if created by the express act of the party.. The convenience of mankind, the public policy of protecting innocent purchasers, and the repose of titles honestly acquired, require some limitation upon powers of this nature, and we know of none more just and equitable than this, that when the right of entry to the land is gone, or the estate is gone by an adverse possession from those who held as heirs or devisees, the whole interest in the land, the power of the administrator to make sale of the land for payment of debts, is gone also. In this opinion we do but follow the. doctrine which has been distinctly in timated both in the Massachusetts and Connecticut Courts. b

The remaining consideration under this head is, whether - the possession of Joseph Dudley can be considered as an adverse possession so as to toll the right of entry of the heirs, and, consequently, extinguish, by the lapse of time, their right of action for the land, as well as extinguish by analogy of principle the power of the administrator to sell the land. It is said, that the entry of Joseph into the premises is consistent with the potential right of the creditors; that he had a right to enter as a co-heir of his father, and if he entered as co-heir; his possession was nt i adverse, but was a possession for the other heirs ar J creditors, and he could not after-wards hold adversely, or change the nature of his possession, for the creditors might always elect to consider him their trustee. There is no doubt, that in general, the entry of one heir will enure to the benefit of all, and that if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs. But it is as clear, that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may, afterwards, by disseisin of his coheirs, acquire an exclusive possession upon which the statute will run.; An ouster, or disseisin, is not, indeed, to be presumed froth the mere fact of sole possession; but it may be proved by sueh possession, accompanied with a notorious claim of an exclusive right. And if such, exclusive possession will run against the heifs, it will, by parity of reason,: run against the creditors* For the. heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by. descent from their ancestor, and take the profits to their own use during their, possession ; and the most that can be said is, that they hold consistently with the right of the creditors. The creditors, in short, have but alien on the land which may be enforced.through the instrumentality of the administrator acting under the order of the Court of Probates.

But in order to apply the argument itself, it is necessary to prove that the ancestor had an estate of inheritance, and that the party entered as heir. Now, in the case at bar, all the circumstances point the other way. There is not, as has been already intimated, any proof, that William Dudley died seised of an inheritance in the land ; and there is direct proof that he asserted the inheritance to be in his son Joseph ; and the entry of. the guardian of Joseph as well as his own entry, after his arrival of age, was under an exclusive claim to the whole, not by descent, but by title distinct or paramount. There is certainly no incapacity in an heir to claim an estate by title distinct or. paramount to that of his ancestor ; and if his possession is exclusive under such claim, and h,e holds all other persons out until the statute period has run, he is entitled to the full benefit and proteo tion of the bar. It appears to us, therefore, that the jury ought to have been instructed, that it they were satisfied, that Joseph’s possession was adverse to that of the other heirs, and under a claim of title distinct from, or paramount to that of his father, during his 25 years of exclusive possession, the entry of the purchaser, under the administrator’s sale, was not congeable, and that the power of the creditor over the estate was extinguished. There was therefore error in the. opinion of the Court to the jury, that as against the creditors of William Dudley, neither Joseph nor the tenant had gained any title to the land in controversy by possession.

For these reasons the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to the Court to order a venire facias de novo.

Gore v. Brazer, 3 Mass. Rep. 523. 542. Wyman v. Brigden, 4 Mass. Rep. 150. 155. Sumner v. Childs, 2 Conn Rep. 607.

Notes

a

Com. Dig. Seisin. F. 2. & F. 3 , 1 Roll. Abrid. 662.l. 45. Id. 661.l. 45.

a

See Phillips on Evidence, ch. 7. s. 2. p. 126. Foley v. Wilson, 11 East, 56.

a

Drinkwater v. Drinkwater, 4 Mass. Rep. 354. 359. Jenk. Cent. 184. pl. 85.

b

Littleton, s. 169. Jenk. Cent. 184. pl. 85. Brooke's Abridg. Devise, pl. 36. Litt. s. 391. Co. Litt. 240.

a

Statutes of Connecticut. Revision of 1821. tit. 32. Estates 33,

a

Gore v. Brazer, 3 Mass. Rep. 523. 542. Wyman v. Brigden, 4 Mass. Rep. 150. 155.

b

2 Conn. Rep. 607.

a

See the statute in Revised Laws of Conn. tit. 59. sec. 1. p. 309. 1 Swift’s System, 335.

b

1 Swift’s System, 335, 336. Sumner v. Child, 2 Conn. Rep. 607. 615.

a

Bac. Abr. Limitations, B. Bac. Abr. Fines and Recoveries, F. Comyn’s Dig. Fine, K. 2.

a

Bac. Abr. Fines, &c. F. cites 1 Mod. 217.