Lessee of Clymer v. Dawkins/Opinion of the Court

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Kentucky.

There were three tenants in common of a tract of land in Kentucky, and the question was, how far the possession of the occupiers, holding under two of the three, constituted an adverse possession against the third, so as to entitle them to the benefit of the Statute of Limitation.

In 1806, a patent was issued by the Governor of Kentucky to George Clymer for one-third, and Charles Lynch and John Blanton for two-third of a certain tract or parcel of land, containing eleven thousand acres by survey, bearing date the 30th of May, 1784, lying and being in the county of Jefferson, on the waters of Harrod's creek, and bounded as follows, &c., &c.

A division of the land was made by commissioners and offered in evidence during the trial; and as the various proceedings under this commission ran through a long period of time, the whole of them will be stated before passing on to other circumstances in the history of the case.

'Henry county, the first day of January, eighteen hundred and two.

'We, William Neall and Isaac Forbes, having been appointed commissioners by the Country Court of the said county of Henry, in conformity to an act of the General Assembly of the state of Kentucky, for the purpose of making division of lands between residents and non-residents in the said county of Henry, having been called on to divide a tract of eleven thousand acres on the waters of Harrod's creek, in the name of George Clymer for the one-third, and Charles Lynch and John Blanton two-thirds, agreeably to a patent bearing date the 24th day of December, in the year of our Lord, one thousand eight hundred and six, and of the commonwealth of Kentucky the fifteenth, and signed by Christopher Greenup, the then Governor of Kentucky. It being stated to us that the said George Clymer is a nonresident, we have gone on the ground, and made the following division, to wit: Charles Lynch and John Blanton's portion is lot No. 1, containing seven thousand three hundred and thirty-three and one-third acres, agreeably to the plat hereby laid down, which is bounded as followeth, to wit: &c., &c.

'No. 2, on the plat allotted to George Clymer on the division, is bounded as follows, to wit, containing three thousand six hundred and sixty-six and two-thirds acres: Beginning, &c., &c., hereby conveying and affirming the foregoing division, agreeable to the said allotment, to the said Charles Lynch and John Blanton, for the two-thirds of said eleven thousand acres, and the one-third to the said George Clymer, agreeably to the metes and bounds before described.

'Given under our hands and seals as commissioners aforesaid, the day and date first above written.

WILL. NEALE, [L. S.] Com'r.

ISAAC FORBES, [L. S.] Com'r.

'Signed, sealed, and delivered in presence of

Henry County Court, Clerk's Office, Jan. 1, 1810.

'The within division of land was filed in my office, acknowledged by William Neale and Isaac Forbes, commissioners in said county for the division and conveyance of lands, parties thereto, as their act and deed, and admitted to record.

'Att.

ROW. THOMAS, C. C.

'Henry County, October Court, 1827.

'An instrument of writing purporting to be a division of eleven thousand acres of land, in the county of Henry, between Charles Lynch, John Blanton, and George Clymer, the same being made by William Neale and Isaac Forbes, commissioners appointed for that purpose, was this day produced into court, (the commissioners being absent,) together with the certificate of acknowledgment, entered and attested by Rowland Thomas, clerk. Whereupon, on motion of Charles H. Allen, attorney for the parties, it is ordered that the same be now received and recorded accordingly, which was heretofore done.

'Att.

EDMD. P. THOMAS, C.

By WILL. SHARP, D. C.

'Henry County Court, Clerk's Office, Aug. 8, 1828.

'I, Edmund P. Thomas, clerk of the County Court for the county aforesaid, do certify, that on the day of the date hereof, the foregoing commissioners' report of lands, together with the certificates thereon endorsed, were filed in my office and recorded.

'Att.

EDMD. P. THOMAS, C.'

In 1813, George Clymer, one of the patentees, residing in Philadelphia, made his will and died. He devised his property to certain persons in trust, for the payment of certain moneys, and these to be divided amongst his children and grandchildren.

Much evidence was given in the court below, to show the nature of the title and possession under which the occupants (residing entirely upon the part allotted to Lynch and Blanton) held their lands. They all claimed under Lynch and Blanton; and the following is a summary of the evidence: It was proved that these persons entered upon and first improved, settled, and occupied, the land; and they, and those claiming under them, have held, claimed, and occupied, the land, as their own, for upwards of twenty-five years before the commencement of this suit; but no evidence was introduced by either of the defendants, conducing to prove that either of them, or any other person, had given any express notice to the patentee, Clymer, in his lifetime, or either of the trustees named in the will of said Clymer, that they, or any of them, held the land adversely to the claim or right of Clymer; nor was any evidence given, tending to prove that notice of any sort had ever been given to Clymer, or any of the trustees named in his will, by any of the defendants, or any other person under whom any of them claim, except the facts which the evidence did conduce to establish, that the land in possession of each defendant had been taken possession of, improved, and occupied by actual residence, by each defendant, (or at first by him of whom he derived his possession and claim of right, and afterwards by himself,) as all entirely his or their own, and not as co-tenant with Clymer or his devisees, and had been so ever afterwards held, for upwards of twenty years, and up to the commencement of this suit.

It did not appear by the evidence, that either of the defendants, or his predecessor in the possession, had any knowledge or notice, in fact, that Clymer was a co-partner with Lynch and Blanton, or had any interest in the land; and plaintiff's counsel insisted only that they were bound to know and notice the right of Clymer, apparent on the patent.

Evidence was also introduced to show that most of the defendants were within the boundary of adverse patents, elder in date than the patent to Clymer, Lynch and Blanton, and that some of them had contracted with the claimants of those elder patents, for the land in their possession, since they became possessed of it.

The suit was brought in December, 1840, by the representatives of Clymer, against sixty-three occupants of the tract, which, as before stated, had been assigned, in the partition, to Lynch and Blanton.

Upon the trial, the plaintiff asked the court to instruct the jury:

1. That if the jury believe, from the evidence, that the defendants, or others under whom they claim, entered upon the land in contest under the claim of Clymer, Lynch and Blanton, for eleven thousand acres, that such of the defendants as the jury may find so entered, by themselves or others under whom they claim, cannot avail themselves of the elder patents read in evidence, as to defeat the plaintiff in this action.

2. That the defendants cannot defeat the plaintiff's right to recover, if the jury believe, from the evidence, the plaintiff ever had right, by reason of the Statute of Limitation, provided the jury believe, from the evidence, that the defendants, or those under whom they claim, entered upon the land in contest, under the title of Clymer, Lynch and Blanton, for the eleven thousand acres patented to them.

3. That if the jury find, from the evidence, that any of the defendants entered upon the land in contest, under a parol contract of purchase from the agent of Lynch and Blanton, who were tenants in common with Clymer in the eleven thousand acre patent, read in evidence; and the jury also find that such of the defendants as so purchased never notified the patentee Clymer, or the trustees named in his will and codicil, or either of them, that they held adversely to Clymer's title, that the defendants, as to whom the jury may so find, cannot avail themselves of the Statute of Limitation in defence of this action. Also,

4. That such defendants as the jury may find as above-mentioned, if there be any such, cannot avail themselves of the outstanding conflicting elder patents read in evidence, unless the jury further find that such defendants, in the opinion of the jury, have proved a connection with such elder patent or patents, by purchase, either made by them or others under whom they claim.

The court refused to give either instruction, as asked, but instead thereof gave to the jury the following instruction:

'The court instruct the jury, that if they find, from the evidence, that any of the defendants, or those under whom they claimed, entered upon the parcel of the land in controversy in their possession at the commencement of this action, under a contract, whether it was executed or executory, by parol or in writing, with the agent of Lynch and Blanton, or either of their co-grantees with Clymer, of the eleven thousand acres, by the patent read by plaintiff, or any other person claiming under that patent, whereby they purchased an individual two-thirds, or any other such part, and not the entire interest in such parcel or parcels of the land, then such defendants, or those under whom they claimed, and who had so entered, did not, by their entry into the possession, oust Clymer or his devisees of his or their undivided third thereof; but the entry of such purchasers and their possession was for him, Clymer, or his devisees, as well as for themselves; and in the absence of all evidence of notice to Clymer, or those claiming under him, of a subsequent adversary holding by such occupants, their possession did not become adversary, in legal effect, to Clymer or his devisees; and no defendant, who so entered, can now avail himself of the outstanding legal title by the elder patents to be read in evidence; nor can any such defendant prevail in his defence of this action by the length of his possession, and the Statute of Limitation; nor can any defendant who entered, claiming the entire estate in his parcel of the land, add to the length of his own possession that of any one under whom he claimed and had succeeded, who had so entered under a purchase of an undivided part, and was so a co-tenant with Clymer or his devisees, and thereby make out the twenty years of adversary possession within the statute.'

The defendants moved the following instructions, to find as in case of a nonsuit as to all the defendants:

That the plaintiff has shown title only to an undivided interest in the land, and that only one-fifteenth.

To find in favor of all the defendants whose tenements fall within the elder claims of Tuttle and Howard.

To find in favor of all whose possession existed, and continued, and have been held as their own, for twenty years before the commencement of this suit.

To find in favor of those whose possession existed and continued under Lynch and Blanton, and adverse to Clymer, for twenty years before suit brought.

To find in favor of those whose possession originated, and have been held as their own, twenty years before suit brought, under purchases from Lynch and Blanton, or either of them, after the division made under the orders of the Henry county court.

The court refused to give either of the instructions, as moved by the defendants, but in substitution therefor gave the following instructions:

'The court instruct the jury, that their verdict ought to be for each defendant who, or whose predecessor in possession, from whom he had derived his possession and claim of right, had entered on the land in his possession at the commencement of the action, twenty years before that day, by a purchase and claim thereof in severalty, all as his own, and not an undivided part in co-tenancy with Clymer or his devisees, but adversely to him or them, whether such purchase was from Lynch or Taylor, or Lynch and Blanton, or any other who had ever afterwards, up to the commencement of this suit, continued thus to hold such possession.'

To each opinion and decision of the court, in refusing to give the instructions as moved by the plaintiff and each of them, and in giving the instructions which were given by the court in substitution, or instead thereof, the plaintiff at the time excepted. Also, the plaintiff excepted to the instruction which is given by the court in substitution of the instructions moved by the defendants, at the time the instruction was given, and he now excepts to each opinion and decision, and prays that this his bill of exceptions be signed, sealed, and enrolled, which is accordingly done.

THOS. B. MONROE, [L. S.]

Crittenden, for the plaintiff in error.

Tibbatts and Armstrong, (in a printed argument,) for the defendants in error.

1. That the proceedings of the County Court of Henry county, and of the commissioners for the purpose of making a partition of said land, were not authorized by any law, and the division was therefore null and void, because not conformable to the statutes on which its validity depended. 1 Littell's Laws of Kentucky, 691; Hood v. Mathers, 2 Marsh. (Ky.), 559; 3 Litt. (Ky.), 40; Clay v. Short, 1 Marsh. (Ky.), 371.

2. That the defendants having entered and held under the patent to Clymer, Lynch, and Blanton, could not lawfully set up and rely for their defence upon any other outstanding adverse patents to bar the plaintiff's recovery, and especially as it was not shown to be a subsisting and available title.

3. That the possession of the defendants having been acquired under Lynch and Blanton, or one of them, could not be considered as adverse to their co-tenant, Clymer, or allowed to operate as a bar to the present action; and that this is especially true as to those defendants who showed no deed or written evidence of purchase.

1st. Eight years after the division was said to have been made, it was given to the clerk, and not to the court until 1827. The act of Assembly does not say when it must be recorded, but twenty-five years is too long a time to elapse. The parties might have had it in their pocket all this time. The courts in Kentucky have always construed such papers strictly. See the authorities above.

2d. If the defendant has acknowledged the title of the plaintiff, he cannot afterwards dispute it. 1 Cai. (N. Y.), 394, 444; 5 Cow. (N. Y.), 129, et seq. 174; 4 Cranch, 419.

Nor can a defendant, whose predecessors had recognized the title of the plaintiff, afterwards dispute it. 5 Cow. (N. Y.), 129, 130; 4 Johns. (N. Y.), 230; 1 Caines (N. Y.), 394; 4 Munf. (Va.), 473; 2 Johns. (N. Y.), Cas., 353; 3 Pet., 50; 3 Serg. & R. (Pa.), 386; 13 Johns. (N. Y.), 116; 3 Mart. (La.), (N. S.), 11; 6 Johns. (N. Y.) 34; 7 Id., 157; 19 Id., 202; 5 Cow. (N. Y.), 520; 3 Wash. C. C., 498.

The defendants also offered in evidence outstanding titles in strangers, which they alleged to be elder and better than the plaintiff's title. Can they do this?

If it be admitted as the settled doctrine, that though the plaintiff in ejectment has a title better than that of the defendant, yet that he is not entitled to recover if the defendant can show a superior title in a third person, though he does not claim any privity with that third person: If this be the admitted doctrine, it is subject to a great many exceptions, which destroy its general applicability, and those exceptions are supposed to include the present case. The instances of such exceptions are numerous, namely:

A mortgagor is never suffered to set up the title of a third person against his mortgagee. Doe v. Pegge, 1 T. R., 758, n.

It is established that a mortgagor cannot set up a prior mortgage to defeat the recovery of a second mortgage. He is barred by his own act from averring that he had nothing in the premises at the time of the second mortgage. The principle of this decision has been repeatedly recognized. Lade v. Holford, 3 Burr., 1416; Newhall v. Wright, 8 Mass., 138, 153; Jackson v. Dubois, 4 Johns. (N. Y.), 216.

A lessee cannot do it against his lessor; 8 Mass., 138, 153; 1 Cai. (N. Y.), 444; 2 Id., 215; 7 Johns. (N. Y.), 186; but it is needless to cite authorities on this point.

So a person who has entered into possession under another, and acknowledged his title, cannot set up an outstanding title in another. Jackson v. Stewart, 6 Johns. (N. Y.), 34; Jackson v. De Walts, 7 Id., 157; Jackson v. Henman, 10 Id., 292.

Nor can a person claiming the land under a tenant, set up an outstanding title against the landlord. Jackson v. Graham, 3 Cai. (N. Y.), 188.

A person who has entered by permission under one tenant in common, cannot, after partition made, set up an adverse title against another tenant in common, to whose share the premises had fallen. Smith v. Burtis, 9 Johns. (N. Y.), 174; Fisher v. Creel, 13 Id., 116.

A mere intruder cannot protect himself by setting up an outstanding title. Jackson v. Harder, 4 Johns. (N. Y.), 202.

But if a defendant have acknowledged the title of the plaintiff, he cannot afterwards dispute it. ''Jackson ex dem. Low v. Reynolds'', 1 Cai. (N. Y.), 444; ''Jackson ex dem. Smith et al. v. Stewart'', 6 Johns. (N. Y.), 34; ''Jackson ex dem. Davy v. De Walts, 7 Id., 157; Jackson ex dem. Browne v. Henman'', 19 Id., 202.

And even where the predecessors of the defendant had acknowledged the title of the claimant, it was held that the defendant was equally precluded from setting up the defence of adverse possession. ''Jackson ex dem. Van Schaick and others v. Davis'', 5 Cow. (N. Y.), 129, 130.

Where one takes by descent as a co-heir and tenant in common, he cannot show in ejectment by his coheir, or one claiming under him) that the ancestor had no title. Jackson ex dem. Hill v. Streeter, 5 Cow. (N. Y.), 520.

Armstrong, for defendants in error, stated the case and proceeded thus:

The issue, then, in this cause between the parties seems to be on the question: did the entry of defendants on land to which plaintiff had right in common with their vendor, notwithstanding their ignorance of that right, their want of intention to enter as tenants in common, and their express entry claiming and holding the land as their sole freehold, adversely to the whole world, constitute them tenants in common with Clymer?

It is not, I presume, necessary for me to cite authority to show the intention with which an entry is made on land defines the nature of that entry. These defendants, and those under whom they claim, entered under their purchases as sole owners in fee of the whole lands held by them, and were so possessed thereof for more than twenty-five years before the commencement of this suit.

The counsel for defendants does not deem it necessary to consume the time of the court, by using argument, or citing authority, to prove that possession of land by a purchaser, under a contract for the entire estate, without right in the grantor, is adverse to the rightful owner; or that a person in possession of land may purchase in an outstanding title to protect that possession, but will merely call the attention of the court to the case of ''Jackson ex dem. Preston, &c. v. Smith'', in the Supreme Court of New York, 13 Johns. (N. Y.), 406, as a case in point. There the defendant held under a deed made by one out of nine tenants in common; but the deed purported to be for the whole fee. The court says, (page 411,) 'the deed,' under which defendant held, 'for the whole lot cannot control the possession of the defendant, and of his father, so as to make it the entry and possession of a tenant in common, merely because it gave title to no more than one-ninth part of the whole lot;' and again, (page 112,) 'it is evident, therefore, that the doctrine in relation to tenants in common does not apply to this case. It might as well be urged as applicable to a conveyance made by a stranger of any lands held in common, and it will not be questioned that the purchaser under such a deed, given without right on the part of the grantor, would notwithstanding be adverse to the rightful owners, although held by them in common.'

It is believed the case cited presents the true law of this case, and should the court deem it necessary, they are respectfully requested to examine the case referred to for themselves.

Tibbatts, for the defendants in error, recited the facts and evidence in the case with great particularity, and then added: Under this state of the evidence, on the part of the defendants, we contend that the law of the case was for them, and the verdict of the jury correct on the following grounds:

1. Because the division was a good and valid division, and severed the estate of Clymer from that of his co-patentees.

2. Because, if it were not good in its inception, it became good by the lapse of time, and the legal presumptions arising from the lapse of time.

3. Because the defendants held the land adversely to the right or title of the lessor of the plaintiff, and their holding being adverse, his right of entry is barred by the Statute of Limitations.

By the act of the legislature of Kentucky, approved December 19, 1792, (2 M. & B., 1066,) it is enacted, sect. 1, that if the owners of lands within this state, who are non-residents, do not attend to have the same divided, where the same is held in conjunction with citizens of this commonwealth, or with other non-residents, where such non-residents may apply by themselves or agents to have the same divided, or do not appoint agents to make such division within one year from the passage hereof, the courts of the several counties within this state shall appoint six commissioners in each county, who, or any two of them, shall, when called upon for the purpose by the citizens of this commonwealth, or the owners of lands who are non-residents, or their agents, attend and make such division agreeable to the contract entered into by the parties, 'and such commissioners shall make return of such land by them so divided, with the quantity and names of the parties concerned, and by whom called upon to do the business, to the county court of the county where such land may lie, to be there recorded.'

The requisitions of this act are,

1. The appointment of six commissioners by the court, which has been done.

2. The return of the land, with the quantity and names of the parties concerned, and by whom called on, &c., which is construed to mean 'a description of the boundaries of the whole tract, and of the particular lots divided, together with the names of each party holding interests, so that it may duly appear who were parties to the partition;' Hood v. Mather, 2 Marsh (Ky.), 560; which has been complied with.

3. That the return shall be made to the county court of the county; and it is decided (Id.) that it will not be good to make the return to the clerk's office, but that it must be made to the county court.

We contend that this condition has also been complied with; for though the division was first returned to the clerk's office and acknowledged by the commissioners, yet it was afterwards presented to the court, which was good, because the statute does not require that the commissioners shall present it in person, nor acknowledge it; it being an official act, such as the return of a summons by a sheriff, which, with the papers with the return written thereon, may be handed in person, or sent by a third person, or by letter, &c.

Nor does the statute fix any time in which the division is to be returned; nor is there any thing to be done by the commissioners in court, or by the court itself, the law itself ordering what is to be done. Besides, it appears from the record of the court, that it was received and ordered to be recorded, on the motion of 'the agent of the parties,' which will include Clymer as well as the other, and will be so intended by the court. See Pringle v. Sturgeon, Litt. (Ky.), Sel. Cas., 112, and Parker's heirs v. Anderson, 5 Mon. (Ky.), 540. That if the division was not good in its inception, it became good by the lapse of time, and the jury had a right to presume every thing which would be necessary to make it good, as a deed of release, or confirmation from Clymer.

'Artificial or legal presumption is is arbitrary, inflexible, and conclusive. It is the policy of the law substituted for proof of facts, the establishment of which by oral testimony, or written testimony, or written memorial, is rendered impossible by lapse of time.'

The presumption not absolutely conclusive is such, that after twenty years a bond is paid off; a mortgage satisfied, the mortgagor remaining all the time in possession; the equity of redemption released, the mortgagee having enjoyed the possession twenty years; or the legal title conveyed to the purchaser after twenty years' possession, &c., &c. These may all be combatted by proofs or explanations, inconsistent with the inference of reason, and from the isolated facts which of themselves would establish the presumption. Hence their consideration belongs to the jury, to whom they will be left upon hypothetical instructions. The jury may presume a deed when neither the chancellor nor the common law judge will or can. Stark., 1216, 1227, 1235; Peake Ch., 25.

A possession of thirty years or less, by a purchaser who held a bond for a title, would be sufficient, in the absence of any controlling circumstances, to create a legal presumption of a conveyance from the possessor or the legal title. In such a case, it is not only necessary for peace and justice, that such a presumption should arise, but is intrinsically probable that a deed was made. 10 Johns. (N. Y.), 377; 11 Id., 456; 3 Mass., 399; 5 Cranch, 262; Gaines v. Conn's heirs, 2 J. J. Marsh. (Ky.), 107.

Although the Statute of Limitations will not run where the possession held is on pledge, mortgage, &c., yet, 'if possession had been of twenty years' duration, it might have justified the presumption, in case there were no repelling circumstances, that the testator relinquished the title to the slaves in satisfaction of the debts, and a court of chancery would not then interfere to disturb the possession. Mims v. Mims, 3 J. J. Marsh. (Ky.), 106.

Without some opposing probability, the jury will presume a deed after possession of twenty years, by one who had purchased the land, which, in consequence of his purchase, he shall have so long occupied. 2 Saund., 175 a.; Stark., 502, 1243, 989; 7 Wheat., 59.

Grants may be presumed from lapse of time. 12 Co., 5; 2 Hen. & M. (Va.), 370.

Generally whatever will toll the right of entry will create a presumption of the conveyance of the legal title.

Every thing necessary to the validity of a collector's deed will be presumed after twenty years, if it be shown that he was collector of taxes which were committed to him. 14 Mass., 145; Id., 177; Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.), 436.

3. But we contend further, that the defendants held the land adversely to the right or title of the lessor of the plaintiff, and that their holding being adverse, the right of entry is tolled, and the plaintiff is barred by the Statute of Limitations.

We admit, as a general principle, that the possession of one tenant in common, or joint-tenant, is the possession of the other; Coleman v. Hutchinson, 3 Bibb. (Ky.), 209; and that the Statute of Limitations does not run against one tenant in common in favor of another, unless there has been an actual ouster and adverse holding. (Id.) But in this case we contend that there has been both; we show that the defendants, ignorant of the rights of the ancestor of the lessor of the plaintiff, without any intention to enter as tenants in common, entered upon the land, expressly claiming and holding it as their sole freehold, adversely to the whole world; they, and those under whom they claim, entered under their purchases, as sole owners in fee of the whole land held by them, and were so possessed for more than twenty-five years before the commencement of the suit.

The quo animo with which an entry is made on land, will define the nature and character, whether friendly or adverse, and extent of the possession acquired by the entry; 1 Marsh. (Ky.), 347; Calk v. Lynn's heirs, 3 Id., 615; and whether the possession of land is adverse to a certain claim or not, is a question of fact to be found by the jury; Bowles v. Sharp, 4 Bibb. (Ky.), 550; or as the true doctrine is more distinctly laid down in Barrett and wife v. French, 1 Conn. The possession of one tenant in common recognizing the title of his co-tenants, is in legal consideration the possession of all; that persons under the same title, without partition, cannot prescribe against each other. Broussard v. Duhamel, 3 Mart. (La.) N. S., 11.

That where 'two persons claim by the same title, there shall be no adverse possession, so as to toll the entry of the one, but an entry of the other be at all times lawful. 2 Esp. N. P., 8, (old paging 434;) Carothers et al. v. The Lessee of Dunning et al., 3 Serg. & R. (Pa.), 386.

But that a person claims to hold land under the same title, is no evidence that he holds amicably with the original holder of that title, or those claiming under him. The purchaser of land sold for the non-payment of taxes holds adversely to the former owner, and can consequently avail himself of twenty years' adverse possession. Graves v. Hayden, 2 Litt. (Ky.), 65. The court say, 'The circumstance that the defendant claims to hold the land in controversy under Martin's title, was no evidence of his not holding adversely, nor could it prevent the Statute of Limitations from running. Being a purchaser in fee, though he held under Martin's title, he did not hold under Martin, but in his own right, in virtue of his purchase, and must therefore have continued to hold adversely to Martin and those deriving title through him.'

So a purchaser under a sheriff's sale-and

Where a party had obtained a decree, though a void one, for a conveyance in fee absolute, and a conveyance in pursuance thereof of the inheritance of his deceased wife, under the erroneous idea that he was heir of her son, who died shortly after his mother's death, and had sold the land to one who retained the possession twenty years, such alienee is protected in his title and possession by lapse of time. Baseman's heirs v. Batterton et al., 1 Dana (Ky.), 432.

So with the defendants, notwithstanding they claim the same title, and though the division may have been void.

Therefore, though the possession of one tenant in common should be deemed the possession also of his co-tenant, nothing to the contrary appearing; yet if a tenant in common enter not as a tenant in common, but adversely to his co-tenant, his twenty years' possession would not only be a good defence against, but would in fact so invest him with the complete title, as to enable him to recover in ejectment against his co-tenant.

'That one tenant in common may oust his co-tenant, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession.' McClung v. Ross, 5 Wheat., 124, per Marsh. Ch. J.

The law is, that nothing but an actual ouster by one tenant in common shall give him the exclusive possession. Lessee of Empsom v. Shackleton, 5 Burr., 2604; Carothers et al. v. The Lessee of Dunning et al., 3 Serg. & R. (Pa.), 385.

But if there has been an actual ouster and adverse holding, it is well settled in numerous cases, that the Statute of Limitations will run from the time of such ouster and adverse possession. Coleman v. Hutchinson, 3 Bibb. (Ky.), 212; and see Brackett v. Norcross, 1 Greenl. (Me.), 91; Russell's Lessee v. Baker, 1 Harr. & J. (Md.), 71; Lessee of Brandt et al. v. Whitbeck, 6 Cow. (N. Y.), 633; Van Dyck v. Van Buren, 1 Cai. (N. Y.), 84; Bryans v. Atwater, 5 Day (Conn.), 188.

We contend that the division of the land, the marking the lines, the selling the entire fee, amounted to an actual ouster-no actual force was necessary, and none could have been used in this case, the land being wild land. To prove an actual ouster by one tenant in common against another, it is not necessary to show that any real force was used; it is sufficient to show that the tenant in possession claims the whole, and denies the title of his co-tenant; McConnell v. Brown, Litt. (Ky.) Sel. Cas., 468; Adams Eject., 56; and this rule must work both ways.

Where the defendant, having purchased a lot of land, and received a deed for the whole lot, in which the grantor stated himself to be the heir of the patentee, and he entered into the possession under that deed, and it afterwards appeared that the grantor had title to one-ninth part of the lot only, as a tenant in common, this was held not to alter the character of the defendant's possession, so as to prevent its being adverse, but that he must be deemed to have entered under his deed, as sole owner of the fee in the whole lot; and that possession of land by a purchaser under a deed for the entire lot, given without right in the grantor, is adverse to the rightful owners, though tenants in common with the grantor. Lessee of Preston et al. v. Smith, 13 Johns. (N. Y.), 406.

And in the case of Culler et al. v. Motzer, 13 Serg. & R. (Pa.), 356, it is held, that if one tenant in common sell the whole tract, and possession be held adversely for twenty-one years, the sale and possession amount to an ouster of the co-tenant, who is bound by the act of limitations.

This case is fully in point: the court say, 'the possession here was for twenty-five years, in denial of the right of the other; for the sale of the whole, and the possession under such sale, would amount to an ouster.' The purchaser, who came into possession in 1800, came into possession under a title adverse. Motzer could never be considered as a co-tenant, and as the bailiff and receiver of James Brown, and as such accountable for the profits in an action for account rendered. He never entered as a tenant in common; and the charge of the court was altogether correct, for this was an entire tract of land to which there was no adverse claim, and therefore the adverse claim was co-extensive with the claim. That was the only right, and the possession there being no adverse title, was according to that right. There ought not, consequently, to be made any deduction on account of James's supposed outstanding title. ''Jackson ex dem. Preston v. Smith'', 13 Johns. (N. Y.) Possession of land by a purchaser, under a deed of an entire lot, is adverse to the rightful owner, though tenant in common with the grantor.

If, then, a tenant in common or joint-tenant cannot hold adversely to his co-tenant, and if the holding of the defendants amounts, as we contend it does, to an ouster in contemplation of law, and they do hold adversely to the claim of Clymer, the lessor of the plaintiff, then they can rightfully rely either upon the Statute of Limitations, or an outstanding elder title, according as their circumstances may require either defence; and there is no error in the proceedings of the Circuit Court, either in refusing to grant the instructions asked for by the counsel for the plaintiff, or in giving the substituted instruction for the defendants, or in substituting the instruction for those asked for by the plaintiff.

Mr. Justice STORY delivered the opinion of the court.

This is the case of a writ of error to the Circuit Court of the district of Kentucky. The original suit was an ejectment for a certain tract of land, in Kentucky, containing eleven thousand acres: and upon the trial, upon the general issue, a verdict was found for the defendants, upon which judgment passed for them. A bill of exceptions was taken by the plaintiff, to the opinions of the court at the trial; and to revise those opinions, the present writ of error is brought by the plaintiff.

On the 24th of December, 1806, a patent for the tract of eleven thousand acres of land was granted by the commonwealth of Kentucky, unto George Clymer, (under whose will the lessors of the plaintiff make claim,) one-third, and unto Charles Lynch and John Blanton, (under whom the defendants make claim,) two-thirds. In the year 1810, if not at an earlier period, (for there is some repugnancy in the various dates stated in the record,) Lynch and Blanton procured a partition of the tract to be made, by the authority of the County Court of Henry, by certain commissioners appointed pursuant to the Kentucky statute of 1792, by which one-third was assigned in severalty to Clymer, (he being then a non-resident,) by certain metes and bounds; and the remaining two-thirds were assigned to Lynch and Blanton, by certain other metes and bounds. The return of the commissioners was filed, acknowledged, and admitted to record in the clerk's office of the county of Henry, in 1810; but the court of that county do not seem to have ordered the return to be received and recorded until 1827. How this delay took place, has not been satisfactorily explained; and the omission has been insisted upon as an objection to the validity of the partition.

All the defendants appear, from the evidence, to have derived title to the lands in their respective occupation, and to have entered into possession of the same, after the partition was made, and by titles in severalty, derived exclusively from or under Lynch and Blanton; and the lands held by them are situate exclusively within the tract assigned by the partition to Lynch and Blanton. The main defence relied upon by the defendants, at the trial, was an adverse possession to the title of Clymer, during the period prescribed by the Statute of Limitations of Kentucky. To rebut this defence, the plaintiff insisted that the partition was void, and being void, the defendants having entered into the land under the patent to Clymer, Lynch and Blanton, who still, notwithstanding the partition, in point of law, remained tenants in common of the land, were not at liberty to set up an adverse possession against that title; nor at liberty to set up any outstanding superior title in any third person, under any elder patent offered in evidence, to defeat the plaintiff in the action.

The plaintiff, upon the evidence, (which need not be here particularly recited,) moved the court to instruct the jury as follows: [See the statement of the reporter.]

The defendants also moved the court to give certain instructions to the jury; which instructions the court refused to give, but gave the following instruction in substitution thereof: [See statement.]

To the instructions so refused as propounded by the plaintiff, and to the several instructions so given by the court, the plaintiff excepted; and the cause stands before us for consideration upon the validity of these exceptions.

The first point made at the argument for the plaintiff, is as to the validity of the partition under the proceedings in the county of Henry. In our judgment, it is wholly unnecessary to decide whether those proceedings were absolutely void or not; for, assuming them to have been defective or invalid, still, as they were matter of public notoriety, of which Clymer was bound, at his peril, to take notice; and as Lynch and Blanton, under those proceedings, claimed an exclusive title to the land assigned to them, adversely to Clymer; if the defendants entered under that exclusive title, the possession must be deemed adverse, in point of law, to that of Clymer.

And this leads us to the consideration of the instructions actually given by the court, which cover the whole ground in controversy, and, if correct in point of law, show that the court rightly refused to give the instructions asked by the plaintiff, so far as they were not consistent with the instructions actually given. It is very clear that the court are not bound to give instructions in the terms required by either party; but it is sufficient if so much thereof are given as are applicable to the evidence before the jury, and the merits of the case, as presented by the parties.

The first instruction given by the court is as favorable to the plaintiff, in all its bearings, as the law either justifies or requires, and is in direct response to the substance of some of the instructions asked by the plaintiff. It in substance states that if the defendants entered under the title of Clymer, Lynch and Blanton, as tenants in common, and did not claim any title except to two thirds of the parcels of land respectively held by them, and not to the entirety thereof, then their entry into the possession did not oust either Clymer or his devisees of his or their undivided third part, and was not adverse thereto; and that the defendants so entering could not avail themselves of the defence of the Statute of Limitations; and they could not avail themselves of the outstanding legal title of third persons by any elder patent. So far as this instruction goes, it is manifest that it was favorable to the plaintiff; and indeed it is not now per se objected to, but the objection is, that it does not go far enough, and thus was to the prejudice of the plaintiff.

The real point in controversy turns upon the second instruction given by the court, in answer to the prayer of the defendants. That instruction, in substance, states, that if any of the defendant entered into possession of the lands respectively claimed by them, and held the same for more than twenty years before the commencement of the suit, by a purchase and claim thereof in entirety and severalty, and not for an undivided part thereof, in co-tenancy with Clymer or his devisees, but adversely to them, then such defendant was entitled to a verdict in his favor, whether he held by a purchase from Lynch, or Blanton, or any other person who had ever afterwards, up to the commencement of the suit, continued thus to hold the possession. We see no objection to this instruction, which ought to prevail in favor of the plaintiff; on the contrary, we deem it entirely correct, and consonant to the principles of law upon this subject. It is true, that the entry and possession of one tenant in common of and into the land held in common, is ordinarily deemed the entry and possession of all the tenants; and this presumption will prevail in favor of all, until some notorious act of ouster or adverse possession by the party so entering into possession, is brought home to the knowledge or notice of the others. When this occurs, the possession is from that period treated as adverse to the other tenants, and it will afterwards be as operative against them, as if the party had entered under an adverse title. Now such a notorious ouster or adverse possession may be by any overt act in pais, of which the other tenants have due notice, or by the assertion, in any proceeding at law, of a several and distinct claim or title to an entirety of the whole land, or, as in the present case, of a several and distinct title to the entirety of the whole of the tenant's purparty under a partition, which, in contemplation of law, is known to the other tenants. Upon so familiar a doctrine it scarcely seems necessary to cite any authorities. So early as Townsend and Pastor's case, 4 Leon., 52, it was holden in the Common Pleas, by all the justices, that where there are two co-parceners of a manor, if one enters and makes a feoffment in fee of the whole manor, this feoffment not only passes the moiety of such co-parcener, which she might lawfully part with, but also the other moiety of the other co-parcener, by disseisin. This decision was fully confirmed and acted on, in the recent case of Doe d. of Reed v. Taylor, 5 Barn. & Ad., 575, where the true distinction was stated, that although the general rule is, that where several persons have a right, and one of them enters generally, it shall be an entry for all; for the entry generally shall always be taken according to right; yet that any overt act or conveyance, by which the party entering or conveying asserted a title to the entirety, would amount to a disseisin of the other parties, whether joint-tenants, or tenants in common, or parceners. Upon the same ground, it was held in New York, in the case of Jackson v. Smith, 13 Johns. (N. Y.), 406, that a conveyance made by one tenant in common, of the entire fee of the land, and an entry and possession by the purchaser, under that deed, is an adverse possession to all the other tenants in common. To the same effect is the case of Bigelow v. Jones, 10 Pick. (Mass.), 161. The reason of both these latter cases is precisely the same as in the case of a feoffment, the notoriety of the entry and possession, under an adverse title, to the entirety of the land.

Similar principles have been repeatedly recognized in this court. In McClung v. Ross, 5 Wheat., 116, 124, the court said, 'That one tenant in common may oust another, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant, that his possession is adverse, ought not, we think, to be construed into an adverse possession.' In the case of the Lessee of Clarke v. Courtney, 5 Pet., 319, 354, this court also held, that where a person enters into land under a deed or title, his possession (in the absence of all other qualifying or controlling circumstances) is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This doctrine is strongly applicable to the possession under the partition in the present case. There are several other cases affirming the same doctrine, and especially Green v. Liter, 8 Cranch, 229, 230; Barr v. Gratz, 4 Wheat., 213, 223; and The Society for Propagating the Gospel v. The Town of Pawlet, 4 Pet., 480, 504, 506. The doctrine has been carried by this court one step farther; but at the same time one which is entirely consistent with the principles on which the general rule, and the exceptions to it, are founded. In Blight's Lessee v. Rochester, 7 Wheat., 535, 549-550, it was held, that in cases of vendor and purchaser, although the latter claimed his title under or through the former, yet as between themselves, the possession of the purchaser under the sale, where it was absolute and unconditional, was adverse to that of the vendor, and he might protect that possession by the purchase of any other title, or by insisting upon the invalidity of the title of the vendor, as the foundation of any suit against him. Now, upon this last ground, the defendants were certainly at full liberty as absolute purchasers in fee to maintain their adverse possession to the land, and the bar of the Statute of Limitations against Lynch and Blanton, and a fortiori against Clymer.

Upon the whole, we are entirely satisfied that the second instruction given by the court was correct in point of law; and, therefore, the judgment of the Circuit Court ought to be affirmed with costs.