Sergeant and Rawle, Juniata Co PA
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Sergeant and Rawle


Volume 10, Page 182

[Sunbury, June 30, 1823.]

FREDERICK et al. against GRAY
IN ERROR

The admittance or rejection of a witness offered after the evidence has been concluded and counsel have commenced speaking, is a matter of discretion with the court, and is not a subject of error.

If a person to whom land is devised on condition of releasing a debt due by the testator, received the debt, the title to the land is relinquished, and the receipt of the money from a third person, vests no title to the land in such third person.

Yet, if such third person take possession, and be suffered to hold it, by the family, and the money were in full value, and the payment were known and acquiesced in by the heir, and improvements were made, especially, if it were of land held under warrant and survey, and the transaction was before 1760, when this was considered personal property, it seems, chancery would direct a conveyance.

Devise of a moiety of a tract, to be taken off the side nearest the testator's brother, and the other moiety to another; the devisees are not tenants in common, but either may support ejectment. (a) [Fleming v. Kerr, 10 Watts, 444.]

When one tenant in common enters on the whole, and takes the profits, and claims the whole exclusively for 21 years, the jury ought to presume an actual ouster, though none be proved. (b) [Mehaffy v. Dobbs, 9 Watts, 363; Law v. Patterson, 1 W. & S. 184. See Bolton v. Hamilton, 2 W. & S. 294; Calhoun v. Cook, 9 Penn. St. R. 226.]


ERROR to the Court of Common Pleas of Mifflin county, specially held before REED, President, and the associate judges of Mifflin county, in pursuance of the act of assembly.

It was an ejectment for part of a tract of land in that county. Both parties claimed under John Gray, the elder who died seised in fee of the whole tract, in 1759 or 1760, having made his will, dated the 12th April 1759, by which he devised as follows: "I give unto my sister, Mary Gray, one full half of my plantation lying and situate on Juniata river, in Tuscarora valley, to be taken off the side lying next to my brother James Gray's plantation, upon this condition, that she pay my nephew John Gray (son of James Gray), the sum of 5£ in one year after my decease, and in consideration of her making no demand of 13£, I formerly borrowed of her. The other half of my said plantation I give unto my *loving wife Hannah Gray, and my daughter, Jane Gray, to be divided between them, share and share alike; but in case my said wife should die before the execution of this my will, or never return from captivity, then her part both of real and personal estate bequeathed to her, to remain to my daughter Jane; and if it should so happen that my daughter Jane should die, or not return from her captivity, and my wife return and survive her, so, in like manner, that part given to my daughter shall remain in my wife and her heirs for ever." At the time of making the will, the testator's wife and daughter, who had been made prisoners and carried off by the Indians, were in captivity; the wife afterwards returned, but the child never did, in consequence of which her mother became entitled to her share of the estate. The testator made his sister, Mary Gray, the executrix of his will, and his daughter being dead, his eldest brother, James, was his heir. The plaintiffs, who were children of John Gray, son of James (the heir of the testator), claimed under the said James, and also under Mary Gray, sister and devisee of the testator, by virtue of a deed from her to John Gray, father of the plaintiffs, dated the 21st May 1803.

The defendant claimed under Hannah Gray, the wife of the testator; and the land in dispute was that part which was devised to Mary Gray, the sister of the testator. It would seem, that Mary Gray did not accept the devise made to her, because she did not comply with the condition of relinquishing the debt of 13£ due to her from the testator. This appeared by a written receipt signed by her, and dated August 19th, 1760, in the following words: "Received of Hannah Gray, the sum of 16£, it being in full of all debts, dues and demands against the estate of John Gray." Hannah Gray, the widow of the testator, by whom this sum of 16£ was paid, married a certain Enoch Williams, and the whole tract was held by them for upwards of twenty-one years, when John Gray, son of James, got possession, and held it, until he was dispossessed by an ejectment brought against him by Enoch Williams and wife.

In what manner John Gray obtained the possession, was matter of dispute; the plaintiffs alleged that he entered by orders and in right of his father, James Gray, the heir of the testator; but the defendant averred that he came into possession fraudulently and in collusion with the tenant, Williams.

On the trial in the court below, exceptions were taken by the defendant below to the opinion of the court, rejecting evidence, and also to various parts of their charge to the jury, in answer to points proposed. Of the former, however, only two became material on the argument in this court.

1. After the evidence was closed, and one counsel on each side had addressed the jury, a witness named John Patterson, was brought in, on an attachment for contempt, which issued after he had been subpœnaed on behalf of the defendant, and was not offered as *a witness for the defendant, but the plaintiffs objected to the admission of his testimony, and it was overruled by the court.

2. The defendant contended that the 16£ paid by Hannah Gray to Mary Gray, was the full value of that part of the land which was devised to Mary, and therefore, the receipt of the money by Mary was equal to a conveyance of the land, but the court charged otherwise.

3. The court charged as follows: "The defendants rely also on their long possession; its efficacy must be determined by the evidence in relation to it. One-half of the tract was devised to the widow and Jane, in the event of their returning from captivity; the widow did return, and was entitled, at all events, to a possession of part of the tract so devised, according to the terms of the will. If Mary owned the other part, under the will, the widow and she would be in possession of the other; so, if Mary did not take under the will, but relinquished her right, and old John Gray died intestate as to the one-half, then the person to whom such moiety would descend by the act of assembly, or the course of the common law, would be a tenant in common with the widow, and the possession of one would be the possession of the other, and not such adverse possession as would, without actual ouster, give title after 21 years. It would be otherswise, if the two parts of the tracts were separated from each other; in that case, actual adverse possession by one against the other for 21 years or upwards, before suit brought, would be a positive bar." The jury found a verdict for the plaintiffs.

Hale, for the plaintiffs in error, was proceeding to argue the first bill of exceptions to the rejection of the evidence of Patterson, but the court intimated, that it could not be supported; it was a matter in the court's discretion, and not the subject of a writ of error. He then took up the other points.

1. The 13£ paid by Hannah Gray was the full value of the moiety devised to Mary Gray. A court of chancery would have decreed a conveyance to her, after paying the full value of the land. This would be more especially the case, when the nature of these rights by warrant and survey, at the time, is considered. As late as the year 1760, they were treated as personal property, and sold by an administrator, without an order of the Orphans' Court; no ejectments were thought to be maintainable on them, until some time about the year 1760. Bonnet's lessee v. Davebaugh, 3 Binn. 187. Without any deed, therefore, the payment of the money by Hannah, and her taking and keeping possession, without complaint, from that time, gave her an equitable right which could not be divested, after a lapse of years.

2. The court erred in charging, that there must be an actual ouster, to give operation to the statute of limitation between tenants *in common. An exclusive possession and receipt of profits by one tenant in common for 21 years, amounts to an ouster, or, at least, is a strong presumption of it. Vandyke v Vanburen, 1 Caines 84; Adams on Eject. 55; 1 Mass. 320; 10 Mass. 464; Cowp. 217. Nor, indeed, were the devisees under the will tenants in common of the whole tract; Mary's half was to be taken off a particular part, namely the side next the testator's brother James; for a portion ejectment would have lain. No writ of partition could have been supported between the devisees.

Carothers, contra. 1. What right did Hannah Gray acquire to this moiety of the land by paying 16£ to Mary Gray? She claims, it would seem, to come in as a substitute of Mary, the devisee on condition; but that cannot be. She was a mere stranger to the title of this moiety; she could not have been compelled to pay the money, being neither heir nor executrix. There is no conveyance of the land by Mary, nor anything to show an intent in her to sell it; nor, if there were, would it avail Hannah, because Mary had no title. Supposing that Hannah had an equity against the land for the 16£ paid by her (embracing the 13£ mentioned in the will, and interest), she would have to account for the rents and profits, during the time she held the land; and if she was accountable for the rents and profits, she was a trustee, and the act of limitations would not operate in her favor.

2. Supposing there was a tenancy in common, the possession of one is the possession of both, unless there was an actual ouster. There must be adverse possession; the receipt of profits is not sufficient. The doctrine of adverse possession is taken strictly; and the presumption is, that possession is in accordance with the ownership. 4 Bac. Ab. 467, Limitations, B; 1 Dall. 67; 1 Johns. 157; 9 Johns. 167. The devisees were certainly tenants in common, though of a peculiar nature; neither knew exactly what his portion was, thought the general position of each was designated; a partition was necessary to define their exact boundary. Though perhaps not strictly tenants in common to all intents, they ought to be so considered in reference to the statute of limitation.

The opinion of the Court was delivered by
TILGHMAN, C. J. (After stating the case.) The errors assigned in this case are: 1st. The rejection of John Patterson, a witness produced by the defendant: 2. In the opinion of the court, on several points proposed by the counsel for the defendant.

An attachment of contempt had issued against Patterson, who had been subpœnaed on the part of the defendant, and being brought in, after the evidence was closed, and one counsel on each side had spoken, the court did not think proper to admit his testimony. This is a case which must be left to the discretion of the court by whom the case was tried. It cannot be maintained, that either *party has a right to introduce testimony, after the evidence has been closed, and counsel have addressed the jury; the disorder which such a practice would produce, is evident. In the present case, for instance, the plaintiffs said that some of their witnesses had left the court; but it might have been necessary to examine them again, in consequence of what might come from this new witness, or to call some of them, who had been in readiness, but had not been examined before; what was to be done then? The cause must either be suspended until all the plaintiffs' witnesses could be collected, or, in order to do justice to the plaintiffs, if their witnesses could not be had, a juror might be withdrawn, and the case continued; these are inconveniences too great to be submitted to. Nevertheless, a case may occur, in which the court may see plainly, that the introduction of new testimony may be proper; the law leaves the matter, therefore, to their discretion, and whether that discretion be exercised one way or the other, there can be no error of which the superior court can take notice.

No less than nine errors were assigned in the court's opinion, but in the course of the argument they were reduced to two. 1st. On the construction of the will of John Gray, and the receipt given by Mary Gray to Hannah Gray. 2d. On the act of limitation.

1. The counsel for the defendants contended, that the 16£, paid by Hannah Gray to Mary Gray, was the full value of that part of the land which was devised to Mary, and therefore, the receipt of the money by Mary, was equal to a conveyance of the land; but the court was of a contrary opinion, and I think the court was right. The devise to Mary Gray was upon condition that she should make no claim of 13£ which was due to her from the testator's estate; therefore, when she made the claim, she relinquished the devise, and taking nothing by the devise, she had no estate to convey. Indeed, there is not one word in the receipt given by Mary to Hannah Gray, which looks like an intent to convey land; it is simply a receipt for money. But when Hannah paid this money, it is probable, she might think she acquired a title, by coming into the place of Mary, who would have had title, if she had not claimed the money; and in fact, it made no difference to the estate of the testator, whether Mary relinquished the debt, or it was paid to her by Hannah; for in either case, the estate was discharged from it. When Mary refused to accept the devise, the land descended to James Gray, the eldest brother of the testator, and it was incumbent on him to pay the 13£ which Mary insisted on receiving; then, when he did not pay it, but suffered it to be paid by the widow, and permitted her to remain so long in possession, it seems very much like an opinion in the family, that the land belonged to the widow. And this may be accounted for, when it is considered, that until the year 1760, titles by warrant and survey were considered as personal estate, and as such sold by executors and administrators, even without an order of the Orphans' Court. *Under such circumstances, if it could be made out, that 16£ was the full value of the land, and that James Gray, the heir of the testator, knew of the payment by Hannah Gray, acquiesced in it, and suffered her and her second husband, Williams, to hold the possession for 25 years, and expend their money and labor in improvements, under and idea that the property was in Hannah, I am not sure that chancery would not decree a conveyance by James to Hannah; I give no opinion on it, however, as that is not the case which is before us. But the circumstances which I have mentioned, may have some bearing on the questions arising on the act of limitation, which I will now consider.
2. In order to form a fair opinion of the charge of the president of the court below, I will give it, so far as concerns the present question, in his own words: "The defendants rely also on their long possession; its efficacy must be determined by the evidence in relation to it. One-half of the tract was devised to the widow and Jane, in the event of their returning from captivity; the widow did return, and was entitled, at all events, to a possession of part of the tract so devised, according to the terms of the will. If Mary owned the other part under the will, the widow and she would be in the possession of the other; so, if Mary did not take under the will, but relinquished her right, and old John Gray died intestate as to the one-half, then the person to whom such moiety would descend, by the act of assembly, or the course of the common law would be a tenant in common with the widow, and the possession of one would be the possession of the other, and not such adverse possession as would, without actual ouster, give title after 21 years. It would be otherwise, if the two parts of the tract were separated from the other; in that case, actual adverse possession by one against the other, for 21 years or upwards, before suit brought, would be a positive bar against such possession."

Now, in the first place, there was an error in saying, that the devisees under the will of John Gray, were tenants in common; the devise was to each, in severalty, of a moiety of the land, to be laid off at a particular end of the tract; certum est, quod certum redid potest. Either of the devisees might have supported an ejectment for his moiety, without partition, and the jury might have laid it off for him. Tenants in common have unity of possession of the whole, which certainly these devisees had not; and on a writ of partition between tenants in common, the land is divided, not according to quantity, but value; one may have greater quantity, and yet no more than an equal value. But the partition between these devisees, was according to quantity, and each was to have his quantity in a certain place. There is no ground, therefore, for saying, that when one entered on the whole, and held the whole for many years, he was to be considered as holding for the other.

But even supposing there was a tenancy in common, the law was not given in charge to the jury, as it ought to have been. *For when one tenant in common enteres on the whole, and takes the profits of the whole, and claims the whole exclusively, for 21 years, the jury ought to presume an actual ouster, though none be proved. So far as the evidence appears in this case, Hannah Gray certainly did consider herself as owner of the whole, after she had paid the 16£ to Mary Gray, and the heir-at-law seems to have been of the same opinion, for he never made any claim that we hear of, for upwards of 20 years. But from the charge of the court, the jury must have been led to believe, that the sole possession of Mary Gray was of no avail, unless an actual ouster was proved, because she was tenant in common with James Gray. I am of opinion, that in this part of the charge there was error, for which the judgment should be reversed and a venire de novo awarded.

Judgement reversed and a venire facias de novo awarded.

Cited, 4 Watts, 150; 1 P. F. S. 383; Leg Gaz. 21.
Followed, 9 Watts, 377; 10 Wright, 380; 11 P. F. S. 340; 7 Norris, 153.












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