| Md. | Dec 15, 1854
delivered the opinion of this court.
The complainants, (the present appellees,) as heirs at law of Isaac Henry, claim title to one undivided third part of certain lands, situate in Harford county, the remaining two thirds of which they say belong to the defendant Thomas C. Stump. And the bill is filed to effect a partition. Stump, (who is in fact the only defendant having any real interest in the controversy,) denies in his answer, the title of the complainants, and relies upon limitation. It will be seen however, that in reference to his own title, he says “he purchased said lands from the trustee appointed by the chancellor to sell all the interest of John Richie and John Forwood in said lands, and hence this defendant avers that he holds and claims all of said lands that was ever owned, held or claimed by said Forwood and Richie.” Again this defendant says: “That the complainants are probably entitled to some part of some of the named tracts, which is not claimed by defendant, but this is not admitted or denied by this defendant, but merely stated byway of making it plain what this defendant claims, which is, all that was held, possessed or claimed by either said Richie or said Forwood.” It is evident then that Stump claims under Richie and Forwood.
The appellees’ counsel has insisted, that as Stump, in his
Admitting it to be true, as a general rule, that a bill in another cause cannot be used as evidence, the rule does not apply in a case like the present. In the first place the bill referred to is not simply signed by a solicitor, but is sworn to by the complainant. In addition to which, the answer of Richie to the cross-bill filed by Parker Forwood, admits the filing of the bill now sought to be used as evidence, and states it was for the purpose of obtaining a reconveyance of the lands mentioned therein. Under such circumstances it cannot be doubted that the plaintiffs may use the billas evidence. 1 Greenlf. on Ev., sec. 551. 2 Hall’s (N. Y.,) Rep., 444, Belden vs. Davies. 4 Alabama, 227, Durden vs. Cleveland. 2 A. K. Marshall, 491, Rankin vs. Maxwell.
The bill states the lands were sold under an execution to satisfy a judgment of John Sample’s against Richie, and were purchased by Henry Woolsey, John Sample and Isaac Plenry; making reference to the deed of John Moore as sheriff of the county, to the three purchasers: That the lands were sacrificed for a mere trifle compared with their actual value, and being anxious to regain them, wdth a view to accomplish this object, he (Richie,) applied to John Forwood, who, partly out of friendship and partly to secure a debt due to him, consented to advance money enough, with what Richie could raise, to repurchase the land from Woolsey, Sample and Henry; on condition that the deed should be made to Forwood, with the understanding that when the money so advanced should be refunded and his other claim paid, he would reconvey the property to Richie: That in accordance with the arrangement, Forwood purchased from Woolsey, in 1818, all his interest in the land, the deed for which was made to Forwood, and is referred to: That in 1824, he also
Under Richie’s bill, the heirs of John Forwood were made defendants, he being dead. Under the bill filed by Parker Forwood, one of the defendants in the first case, Richie and others are defendants. By agreement, the two causes were consolidated anda decree passed, on the 12th of August 1839, for the sale of the lands mentioned in the proceedings, the money arising from the sale to be brought into court, to be distributed as the chancellor might direct.
At the sale by the trustees under this decree, Thomas C. Stump, (the present appellant,) became the purchaser of the lands now in controversy.
The plaintiffs as the heirs at law of Isaac Henry, claim an undivided third part of the land, to which they contend he became entitled by virtue of the sheriff’s sale. The defence made in argument, in opposition to this claim is, that Richie remained in possession from before 1812, till his death in 1841, claiming title and using the land as his own, by selling timber} and that Isaac Henry never made any claim, never had possession, nor had any one claiming under him.
If the title of Richie is upon possession alone, then it must be adverse, exclusive and continuous for more than twenty years. Was it so for that timé, prior to the filing of this bill, on the 28th of September 1841? It surely was not, when according to his own bill filed in 1836, he admitted the land had been sold under an execution upon a judgment against himself} that he was anxious to regain it, and for that purpose entered into the arrangement with Forwood, who accordingly purchased the rights of two of the three purchasers who acquired title to the land under the sale by the sheriff: the deed to Forwood for Woolsey’s-part bearing date in 1824. The object of that bill, was to obtain from-the heirs of For-wood a conveyance of the title he had acquired under the arrangement, upon payment of the money due to him by Richie.
By operation of law, under the sale made by the sheriff, Richie’s title was vested in the purchasers. 5 H. & J., 226, and 6 H. & J., 204, 205, Barney vs. Patterson. But it has been said by the defendants’ counsel, that although a sale by a sheriff, with his deed in pursuance of it, will give to the purchaser a right to possession, the possession is not thereby transferred, so that the subsequent holding of the defendant in the execution, is to be considered as the possession of the purchaser. And if this be so, inasmuch as Richie continued to hold the land for more than twenty years, subsequent to the sale, the title acquired by Henry to one-third of the land was barred by limitation. If, however, it should be conceded that Henry, with the other purchasers, did not acquire actual possession, but only a right of possession, still such right could not be barred by possession alone, unless it should be adverse, exclusive and continuous, for at least twenty years. And any recognition or acknowledgment of such right, by the party in possession, will prevent his possession from operating as a bar to such right, until twenty year's after the acknowledgment has been made.
In England a bond is presumed to have been paid twenty years after date; but payment of any part within that time, would require twenty years subsequent to the payment to defeat the claim. And payment of part of a mortgage will prevent it from being barred by limitation, for twenty years after-wards, although the mortgagor may have been in possession for nineteen years and upwards, prior to the payment.
Taking Richie’s bill in connection with his answer to Parker Forwood’s bill, the sheriff’s deed and the two deeds to John Forwood, we think there is proof of such a recognition of the title of Isaac Henry, the father of the complainants, by Richie, as would prevent him-, if he were the defendant in
But it has been contended, that the decree in favor of the appellees must be reversed, because their claim rests upon the safe by the sheriff, and although his deed is in evidence thejud'gment and fieri facias are not, and this is a defect in the complainant’s proof. If this should be admitted* still we would not reverse the decree, but as there can be no doubt that there is such a judgment and fieri facias, and inasmuch as the cause must, at all events, be remanded for further proceedings, we will send it back, without reversing or affirming the decree, under the act of 1832, ch. 302; when the additional proof can be put in. The court will sign a decree accordingly.
Cause remanded for farther proceedings to the circuit court for Harford county, sitting in equity.