Doe D. Barrett v. Jefferson

10 Del. 477

• Court: Superior Court of Delaware
• Decided: July 5, 1878
• Status: Published

Opinion

The Court,

Comegys, C. J.,

charged the jury: That the plaintiffs and the defendant in the action, so far as their respective legal rights to the premises in question were concerned and involved in it, both claimed to derive their right and title to them through and from one and same former owner of them in fee simple, Elizabeth Jefferson, deceased, the real plaintiffs in the action, Henry C. Barrett and Sabia C. Barrett, his wife, in right of his wife, and George F. Easton and Annie E. Easton, his wife, in right of his wife, under her last will and testament, in which she devised them to the said wives under their maiden names respectively, and before their marriage to their said husbands, as follows : “ To Sabia C. Jefferson, daughter of my son, Cyrus S. Jefferson, and Annie E. Jefferson, daughter of my son, John W. Jefferson, to them, their heirs and assigns,” and the real defendant in the action, Elizabeth A. Jefferson, the tenant now in possession of them, and who was in possession of them when the action was commenced, by virtue of an alleged holding of them by the said Cyrus S. Jefferson under a paroi or verbal agreement entered into between him and the testatrix, the said Elizabeth Jefferson, his mother, in her lifetime, to buy them of her, and in pursuance of which he was put into possession of them by her in the year 1849, and that from that time he had continued to hold and own them as a purchaser and as his own property against her and the devisees named for moré than twenty years before the action was commenced, and that he had thereby acquired such an adverse possession of them against her and the devisees named for more than twenty years as constitutes in law a good and sufficient defense in bar of the action. It is in evidence, and not disputed, that he continued in the peaceable and uninterrupted, if not the adverse, possession of the premises from the beginning or the early part of the year 1849 until they were sold by the sheriff of the county under a mortgage of them executed by him to Dr. Robert G. Ellegood, on the 13th day of November, 1875, and were conveyed to the purchaser by the deed of the sheriff pursuant to the sale, dated November 1st, 1877. The testatrix, his mother, Elizabeth Jefferson, made and executed .her last will and testament on the 16th day of April, 1858, and which was duly probated on the 15th day of September, 1863, soon after her death.

The .devise to her granddaughters, one of whom was the daughter other son, Cyrus S. Jefferson, under whom the defendant claims to have a good and lawful right to the premises by virtue of his long-continued adverse possession of them against his mother and her devisees of twenty years at least, contained in the will, implies, of course, not only a deliberate but a solemn assertion on her part of her ownership of the premises when it was made and executed by her, and also down to the time of her death, some five years and six months afterward, inasmuch as she retained it in the meantime subject to change or cancellation and left it unaltered and unrevoked at her death.

This defense of an adverse holding and possession of the premises by Cyrus S. Jefferson against his mother and the devisees under her will for the period of twenty years at least before the action was commenced, which was the 30th day of March, 1878, the plaintiffs expressly contradict and deny, and this is the main if not the only question to be considered and determined by the jury, subject, to such instructions as the court is about to give in regard to the well-settled rules of law applicable to it in such a case as this. The plaintiffs have produced in evidence before the jury a complete and perfect and undisputed legal title in fee simple to the premises conveyed to and vested in Elizabeth Jefferson, the testatrix, by two deeds of bargain and sale made, executed, and delivered to her for them, the first by James Fletcher for himself and as attorney-in-fact for James L. Fletcher, dated the 20th day of June, 1835, and the second directly from James L. Fletcher himself, dated the 29th day of November, 1838, both of them duly acknowledged and recorded in the office of the recorder of deeds, in the county, and her possession of the premises under them from the time of her purchase of them until 1849, when her son, Cyrus S. Jefferson, went into possession of them. And this is what is termed the legal paper title to premises like these, and which is prima facie always the best and strongest evidence that can be produced of a perfect legal title to any kind of real estate. Wherefore it is that the law has provided for the recording of such legal titles to real estate and made them public records,.when recorded as provided for, and made such record of them when produced evidence per se of such legal title in all courts of justice and elsewhere; while it is furthermore provided by statute that all contracts for the sale of lands, tenements, and hereditaments, or any interest in or concerning them, shall be reduced to writing, or some memorandum or note thereof shall be signed by the party to be charged therewith, or some other person thereunto lawfully authorized by writing, or no action shall be brought whereby to charge any person upon any agreement or contract for such a purpose and although many paroi or verbal agreements for such a purpose have under special or peculiar circumstances been recognized, both by courts of law and courts of equity, as proper exceptions to the broad and general requirement of the statute, nevertheless the wisdom and policy of both of the legal provisions referred to, as well as the reason and justice of the principle itself, are so strong and obvious that they have long since led to the establishment of the rule of law that whenever in an action of ejectment a claim of right by adverse possession of twenty years or more is set up by the defendant against the claim of right set up on behalf of the plaintiff by a clear and undisputed legal title such as we have just defined to the premises in controversy between them, the duty and the burden of establishing the defense of adverse possession against the legal title in such a case to the satisfaction of the jury always devolves and rests upon the defendant; and when the evidence in the case fails to prove it to their satisfaction or leaves it doubtful in their minds, it is their duty to find against such defense. There is also another positive law which has conduced to the establishment of this principle, and that is the statute which substantially provides nothing less than twenty years’ adverse possession, that is to say, under a claim to hold and own it in his own right, by a defendant in an action of ejectment shall be sufficient to bar the claim and right of the plaintiff to recover the real estate sued for when the better and legal title to it is shown to be in him, and when such an adverse possession is set up and alleged and relied on by the defendant as his ground of defense against it and it is denied by the plaintiff, it becomes a question of fact between them to be determined by the jury on all the evidence before them for and against it. As the defendant has specially alleged and set it up as his ground of defense in the action, of course the affirmative of the question rests upon him, and therefore he is justly and reasonably held to have assumed the obligation and the burden of proving and establishing his defense to the satisfaction of the jury, and if he fails to do that, on all the evidence before them upon the question, they must find against the defense so set up and sought to be proved and established by him.

The defense is that Cyrus 8. Jefferson entered into the possession of the premises in 1849 under an agreement with his mother to buy them of her, and that he continued to hold, use, and enjoy them as his own until he had acquired an uninterrupted adverse possession of them of twenty years at least against her and her devisees before this action was commenced, and that the plaintiffs are consequently barred by it. No evidence whatever in writing of the alleged agreement had been produced, nor had any of the terms of it been proved or made known by the defendant in any manner to the court and jury, not even the price to be paid for them, or when or within what time, or how it was to be paid, except that he was to buy them from her. And the only evidence before the jury in relation to •it was the testimony of the witness, Mrs. Teague, a daughter of the testatrix and a sister of Cyrus 8. Jefferson, that her mother told her a short time before he moved on the premises that she had sold them to him, and the testimony of the witness, William Fleetwood, that he heard Mrs. Elizabeth Jefferson say in 1851 that her son, Cyrus 8. Jefferson, had paid her two hundred dollars for the land, and that it had done her a good deal of good.

Now, with this evidence in the case, slight and limited as it is with regard to his taking possession of the premises under an agreement to buy them of her, taken in connection with the further evidence that he afterward lived and acted on them as any purchaser of them would, and held, used, and enjoyed them as if he was the actual owner of them in his own absolute right, the jury would be warranted in inferring from it, if there were no other evidence in the case, that he had bought them of her; for supposing it contained no other terms, brief and incomplete as it was, it imported an agreement for the transfer of the own ership of the premises from her to him under which she had delivered .the possession of them to him upon an indefinite credit, as well as an uncertainty as to the price to be paid for them. And if so, and that was all there was in the agreement, then his possession of the premises would be considered in law to have been adverse from the beginning as to her, and the only right which remained to her with reference to them was to the price to be paid to her as the consideration for them. By the delivery of the possession of them to him under such an agreement, she had performed all that was to be done on her part, except to formally convey them by deed of bargain and sale to him on being paid in full the price of them.

But there was further evidence in the case to be considered by the jury on which the- counsel for the plaintiffs had contended that the agreement, which was merely a verbal one, must not only have stipulated the price to be paid for the premises, but that it must have further stipulated that Cyrus S. Jefferson was to pay his mother annually a portion of the crops produced on them as rent for the premises in the meantime in lieu of interest on the price of them until it should afterward be paid in full by him, and that the price never was paid by him in her lifetime or afterward ; and accordingly that the legal relation of landlord and tenant with respect to the premises subsisted between them as long as she lived, and between him and her devisees until he was divested of the possession of them by the sale on the mortgage offered in evidence and the sheriff’s deed under it; and if so, then Cyrus S. Jefferson never had and never could have acquired any adverse possession of the premises against either his mother in her lifetime or her devisees after her death.

In charging you upon this point we shall not repeat the argument of the counsel for the plaintiffs or recite the evidence in the case on which they rely to establish the fact that in the agreement under which Cyrus S. Jefferson acquired the possession of the premises from his mother there must have been a further stipulation on his part to pay her rent for them, alleged by them, and that the relation of landlord and tenant subsisted between them from the beginning with respect to them, for it is all before you, and will require but a few brief references to it by us as to the legal effect of it in case you are satisfied as to the truth of it and as to the presumptions that may be drawn from it by the jury. And we will, therefore, merely say in the first place that there is no direct evidence before the jury that there was such a stipulation in the agreement, but the relation of landlord and tenant between the person who owns and the person who occupies the premises in question may be proved and established to the satisfaction of a jury in a trial like this by acts or facts which clearly show it, as well as by direct evidence, and the payment of rent for the premises occupied by one person to another, and so received by the other, has always been considered the strongest kind of evidence of that character to prove that the relation of landlord and tenant by the recognition of both parties then existed between them as to the premises, for which it was paid by the one and received by the other. And we must, therefore, say to you that if you believe the testimony of the witness, Ann G. Hubbard, a daughter of Elizabeth Jefferson, the testatrix, under whose will the plaintiffs claim title to the premises, and a sister of Cyrus S. Jefferson, and are satisfied from it, after hearing all the other' evidence in the case, that he paid his mother rent for the premises in 1851 and 1852, it would amount in fact, if that was so, to an admission or recognition by him, and would be strong evidence to prove that the relation of landlord and tenant subsisted between them with reference to the premises during the years of 1851 and 1852; and, furthermore, if the jury believed her testimony and were satisfied from it, as before stated by us, that her mother asked him for the rent in 1856, and he replied that he paid the taxes and kept up the repairs and that was as much as he could do, and that her mother received the same reply from him on asking him for the rent every year afterward, it could not be construed into a renunciation or repudiation of that relation as before admitted and recognized by him in 1851 and 1852, for he did not deny in 1856 or on any occasion afterward when he made the same reply to his mother’s demand for rent that he had rented the premises of her, or say that he had bought them of her and paid her for them, but it amounted at best to a bad excuse merely for both- his failure and refusal to pay her the rent for them because he was not able to do it and pay taxes and keep up the repairs, and merely excusing himself from complying with her demand on that or any other ground would imply a recognition instead of amounting to a repudiation of his obligation to pay her rent • for the premises. And although he may have paid her no rent after that, or none after 1852, the testimony to which we have just referred, if true, not only affords strong direct evidence that the relation of landlord and tenant actually existed by mutual consent between them up to 1856 at least but it also affords at the same time strong presumptive evidence that it was a part of the understanding and agreement between the mother and the son, the ■ parties to it, when in 1849 he entered into possession of them, that he was to pay her rent for the premises until he was able to pay her for them the price agreed on between them, whatever that may have been. And if that was the case and it was true that she continued afterward to demand the rent annually from him as long as she lived, it afforded strong circumstantial evidence that the relation of landlord and tenant as to the premises so established between them was never afterward dissolved or terminated with her consent.

• Upon the ground that there was such an agreement and such a renting of the premises under which Cyrus S. Jefferson was put in possession of them by his mother, Elizabeth Jefferson, the counsel for the plaintiffs had contended that his possession was not adverse, but having commenced with her consent and under the terms of such an agreement between them, it was what is termed a ■ permissive possession, and could not have become an adverse possession, but continued a permissive possession so long as he continued to hold them under the agreement to pay rent for them, although he had paid her no rent for several years before her death, and as his agreement to buy -them was executory, purely in its character, and was entirely subject to his future will and pleasure, and he had not paid her for them and had never performed his agreement to buy • them, his possession of them never could have become that of a , purchaser of them, or thereby adverse to the right and title of ■ his ■ mother to them. If such were the facts and the proof in the case, and there was nothing further to vary or modify them, the principles and conclusions of law just stated with reference to them would unquestionably apply to them; for if the jury were satisfied from the evidence that when Cyrus S. Jefferson took possession of the premises under an agreement to buy them of his mother it was further understood and agreed between them that he was to pay her rent for them until he did so he was bound by it, and as it constituted one of the terms on which he took possession of the premises with her consent it established from the beginning the relation of landlord and tenant between them as to the premises, and so long as that relation continued he could not acquire any adverse possession of them by failing or neglecting to pay the rent to her pursuant to their agreement.

But the counsel for the defendant has contended that if there was such an agreement and renting of the premises by Elizabeth Jefferson to Cyrus S. Jefferson, and the relation of landlord and tenant thereby existed between them, that it was afterward terminated and ended by his express and unequivocal repudiation of it, and that from that time his possession of the premises became adverse, and so continued to be as long as he held them afterward. The only testimony before you on that point was that of Noble Connaway that he heard a dispute between Cyrus S. Jefferson and his mother on the premises in 1857 or 1859, when she told him to give her an ear of corn as rent for the land, and that he said he would not do it, but if at any time she wanted an ear of corn from the land she might take it and put it in her pocket, but not as rent, for if she claimed it as rent he would take it out of her pocket; and with reference to which we must say that if you are satisfied of the truth of that testimony that it was direct and positive evidence of an express and unequivocal repudiation by him on that occasion of his obligation to pay her rent for the premises and of his relation as tenant of them to her, and if he never did anything-after that to recognize the relation as existing nor made any acknowledgment of it in any other way his possession of the premises from that time became adverse, and her only recourse then was to institute proper legal proceedings against him to recover from him the possession of them if her object was to repossess herself of them. She could, however, at any time within twenty years after that adverse possession on • his part had thus commenced against her, had she lived so long, have instituted an action like this against him or the present defendant for that purpose. But as the twenty years’ limitation of the action commenced running against her from the time the cause of action accrued several years before her death, and was not arrested or suspended by it but has since continued running against her devisees, the plaintiffs in the present action, it will be for the jury to consider and determine from the evidence whether the defendant has established to your satisfaction his defense of an adverse possession of the premises by Cyrus S. Jefferson and those under whom the defendant claims of at least twenty years’ continuation before this action was commenced. If he has not, the verdict of the jury should be in favor of the plaintiffs; if he has, then in favor of the defendant. The action was commenced on the 30th day of March, 1878. Cyrus S. Jefferson’s repudiation of his relation as tenant of the premises to his mother as stated in the testimony of Noble Connaway was in 1857 or 1859. Does that establish the defense ? To do that the jury must be satisfied that the dispute referred to and related by the witness must have occurred before the 30th day of March, 1858.

The defendant had a verdict.