34 Ky. 456 | Ky. Ct. App. | 1836
delivered the Opinion of the Court.
This is an appeal by Sowder and Myers; from a judg* ment in ejectment obtained against them, on the joint and several demise of McMillan’s heirs &c. The suit was tried in the Scott Circuit Court,' to which it had been removed by change of venue; and various opinions of the Court, delivered in the progress of the trial, having been excepted to, the whole case comes up on á bill of exceptions to the refusal of the Court to grant a new trials 1
On the trial, the plaintiffs read in evidence a patent; dated in 1786, granting fourteen thousand acres of land to James Moody; and for the purpose of proving its boundaries, and that the tenement in possession of the defendants was within them, offered to read the plat and report of a survey, purporting to have been made by William C. Johnson, under an order of survey in this cause* This was objected to by the defendants, but admitted by the Court; and the propriety of its admission presents the first question to be considered.
It appears that, the declaration add notice—having been served on Sowder, the tenant in possession—were filed at the May term, 1830, of the Grant Circuit Court* At the same term, an order was made, in the usual form, directing William C. Johnson, to survey the land in controversy. In June following, before the common order was served, or any defendant made, and without notice to the tenant in possession, Johnson made the survey of the fourteen thousand acres, except the last line, which was afterwards run. It was proved, however, that on the night of the day on which the survey was commenced, Myers, who was afterwards made a defendant, was with the surveying party. But, admitti ng the presump
The consent order made in another case, and in an■Other Court, and, so far as appears, between different parties, in which it was agreed by the parties to that suit, that this report should be read as evidence in that suit, is •obviously insufficient to make it admissible as evidence in this suit. If the consent be considered as amounting to such a recognition of the report, as to make it evidence in another case between the same parties, these defendants do not appear to have been parties to the ■consent, and cannot be affected by it. We are, therefore, of the opinion, that the,Circuit Court erred in perWiitting the report to go to the jury as evidence. And, as the other testimony, conducing to prove that the-tenement in contest was included within the boundaries of Moody’s patent, was far from being conclusive, and might have been deemed by tiie jury insufficient to establish the fact, the erroneous admission of the report, was a substantial injury to the defendants. And having been excepted to at the time, as well as included in the grounds for a new trial, is a sufficient ground for reversing the judgment. Craddock vs. Craddock, 3 Litt. 78.
But, although for this error, the judgment must be reversed, it is necessary to decide several other questions
Moody’s patent was used for the purpose of showing , , . i i , , , the extent to which the lessors claimed to have been possessec¡. They proved that they claimed under that pa- . ,J * . . . , , , , , . 1 tent, all ol the land included m it. And they claim to pave been possessed to the extent of the patent boun1 ■ . • r dary, and therefore of the land in contest* by reason of entr7 and other acts of a certain Tyree Oldham, done upon the land, in 1820 and 1821, as their agent, and afterwards, as their lessee.
Whether those acts were sufficient to give them an exa tended possession, depends in a great measure, as has off ten been decided, upon the intent and purpose with wirich they were done; and we think the instructions given by the Court, are liable to the objection that they ascribe to these acts the effect of gaining a possession to the extent of the boundary claimed, without distinctly submitting to the jury, the question of intention, as one upon which the extent of possession depended: and in this we think the instructions were erroneous.
In ascribing to the acts of Oldham the effect of gaining a possession to the extent of Moody’s boundary, the Court also decided a question of law of great importance, arising on the following facts. The land included in the patent of Moody, is situated on the confines of the two counties of Pendleton and Grant, and extends into both. The entry and other acts of Oldham, as well as his pedis possessio, appear to have been confined to the county of ‘Pendleton; while the tenement occupied by the defendants, and for which the action was brought, is situated in the county of Grant. And unless, as a matter of law, the possession of that part of the land which lies in
In this opinion we think the Circuit Court erred. It is an ancient principle of the law upon this subject, that an entry to recontinue a seizin, must ensue the action which is appropriate for the same purpose; and there-> fore if the lands are in several counties, there must be an entry in each county. Co. Lit. 252, b. Hord vs. Walker, 5 Litt. Rep. 22. It is also said by Littleton, that if a man make a deed of feoffment of lands in divers counties, it behoveth to have livery of seizin in every county. Sect. 61, 50, a. And in note (2) by Plargrave upon that section (2 Thomas’ Coke, 337, note 11,) is to be found an extract from Lord Hale’s manuscripts, in which, on the authority of Dyer, 246, and 22 H. 6, 10, it is laid down, that “if a manor extend into two coun-. ties, livery .of that part of it which is in one county, does not pass that which is in the other county. And so it- is with respect to disseizin.”
The decision of the Circuit Court on this question,, seems to be inconsistent with these authorities. And although some of the reasons, on which the principles referred to were adopted, may have ceased, or may never have existed in this country, others still remain; and a sufficient ground for a substantial adherence to them, is that they are so inteiwvoven with other principles on which the doctrines of real property, and the remedies relating to it, depend, that to disregard them on this ion
It would be difficult to find in modern English cases, or in the most approved treatises on the action of ejectment, any direct authority for the opinion that a re.c.overy can be had in that action, upon the mere naked proof of prior possession in the plaintiff, short of twenty years. But the right to recover upon such proof, against an intruder upon the prior possession, has been recognized by this Court, in the cases of Steele's Heirs vs. Logan, 3 Mar. 394; Campbell vs. Roberts, 3 Marsh. 623, and Fowke vs. Darnall, 5 Litt. 319; and has been practically asserted by the Supreme Court of New York, in many cases. Jackson vs. Hazen, 2 John's Repts. 24; Jackson vs. Meyer, 3 Ib. 398; Jackson vs. Hardin, 4 Ib. 210, and Smith vs. Lorillard, 10 Ib. 355, &c.
It is not our purpose—-if indeed we are now at liberty—to question the general right of recovery, as established by these cases; but to ascertain, as far as may be, its true limits, and the principles on which it stands.
The only British decisions on this point, which are referred to in any of the, cases just cited, are the, cases of Bateman vs. Allen, Croke Eliz. 438, and Rivington vs. Allen, 2 Saunders, 211. In each of these cases, and in the case of Reed and Morpeth vs. Erington, Croke Eliz. 323, the jury found a special yerdict, in which the state of
In the case of Bateman vs. Allen (supra,) it being quesr tioned, in argument, whether the plaintiff’s lessors appeared by the verdict to have been in possession, the Court determine that they were in possession, and go on to say that “although they be in as disseizors, their lease to the plaintiff was good, and the defendant without title is not to eject him.” It was contended in the case of Reed and Morpeth vs. Erington (supra,) that upon the verdict, the title (as to a part of the land) was out of the plaintiff, and so the defendant was not guilty of ejecting him. But the Court said this was immaterial, as it was not found that the defendant claimed under those who hac| the title; “and the plaintiff having entered, and the defendant entering upon him, this is an ejectment, for which the plaintiff shall punish him.”
The reasons of the judgment in the case of Allen vs. Rivington, 2 Saunders 211, are not stated in the language of the Court, but iq that pf the Reporter, who says, “the matter of law was never argued, because it appeared in the record, that the lessor of the plaintiff had a priority of possession, an'd there was not any title found in the’defendant,3’ ^And then the priority of possession alone gives a good title to the plaintiff, against the defen, dant, and all the world,’except against the heir of the devisor,” who had the title. This language, taken without reference to the facts of the case, might countenance the idea, that a mere prior possession in the plaintiff, at any indefinite period before that of the defendant commenced, is a good title against the defendant, and against' all the world except the holder of the real or best title, But it appears from the verdict, that the lessor of thq plaintiff' entered, and leased to the plaintiff, and that the defendant, in whoni no title is fouqd, ousted him, Sp
Thus understood, the judgment determined only that the priority of possession was a title in the plaintiff for the purpose of recovering against the wrong doer, and is in effect the same as the preceding cases. The principle asserted by the reporter, that such possession gives title, not only against the wrong doer, but against all the world except the true owner, if considered as expressing the reasons given by the Court for their judgment, is obviously much broader than was necessary to justify the judgment itself. To the extent that it is broader than the question in issue, it is not directly supported by the case, and is not entitled to the 'weight of a judicial authority.
5 The three cases, however strictly construed, estab- } lish, unquestionably, the right of the plaintiff to recover i when it appears that he was in possession, and that the defendant entered upon and ousted his possession, without title or authority to enter. And prove that when the possession of the plaintiff, and an entry upon it by the defendant, are shown, the right of recovery cannot be resisted by showing that there is, or may be an outstanding title in another, but only by showing that the defendant himself, either has title, or authority to enter under the title. It is a natural principle of justice, that ‘he who is in possession has the right to maintain it, and •;'if wrongfully expelled, to regain it by entry upon the •wrongdoer. When titles are acknowledged as separate f.and distinct from the possession, this right of maintain- . ing and regaining the possession, is, of course, subject :!to the exception that it cannot be exercised against the iieal owner, in competition with whose title it wholly ‘fpils, Bqt surely it is pot accordant, with the principles.
In each of these three cases, it appears that the action was brought by the person who was actually ousted and against the individual who actually ejected him. And the question arises in the present case, as it must in any general investigation of the subject, whether the right of action and the principles applicable to it, as above stated, exist and can be applied when the prior possessor does not bring his suit against the actual wrongdoer, but against others acquiring the possession under him. And although in the two. first of the cases, the right of recovery seems to have been placed by the Court principally on the ground of the defendants being a trespasser, we are of the opinion that, in the present State of the law, the action must be considered as being
The principle asserted by Saunders, in the case above cited, that the pi’ior possession gives title (i. e. authoi'izes a recovery,) against all except the true owner, is also entitled to great weight on this question, whether it was his own opinion, or that of the Court. And so far as it is entitled to weight, it proves not only that the action is maintainable against the alienee of the intruder, but that he cannot defeat it by showing an outstanding title in anothez', but only by showing title or authority to enter. Besides, it seems reasonable and just, that he who comes in under a trespasser or intruder, should be allowed no higher pzivileges againsFthe injured person.^ihan-lhe intruder himself. And that a possession acquired by wrong, should be deemed to be infected by that wrong, and consequently subject to the same disadvantages in a contest with the prior possessoz’, so long as it continues in the hands of the wrong* doer himself, or those claiming under him, and by his act until it is fz-eed from all question by the lapse of time.
But according too ur view of the cases referred to, and of the pz'inciples on which they rest, it is essential to the maintenance of the action upon no other title than that of prior possession, that the prior possession must , _ . , , . . ,, . . have been removed by the entry or intrusion ot the de
From this principle it follows that the prior possessor must have had such a possession, at the time .of the entry of the defendant, or those under whom he claims, as would enable him to maintain an action of trespass for the entry. .But it i's not necessary for us to say, in the present attitude of this case, what facts constitute br are sufficient evidence of such an actual possession.
For the errors above noticed, the judgment is reversed, and the cause is remanded, that a new trial may be had, upon principles consistent with this opinion.