The opinion of the court was delivered by
Sergeant, J.
The only point in this case which distinguishes it from those already decided in the other cases, arises upon the statute of limitations. The defendant insisted, that the circumstances proved in the cause, were of such a nature, as that in point of law, the jury were bound to prestime an actual ouster of the plaintiff by Oliver Ormsby. The court below refused to give this binding instruction to the jury, but left it to them to decide, as a'matter of fact upon the evidence; and this leads to an investigation of the origin and grounds of the law on this subject, and of the principles settled in respect to it.
Littleton in his tenures, and Lord Coke in his Commentaries on Littleton, are perhaps sufficient to show us how the law existed in their days, and has been handed down to us. Littleton in sect. 396, says, if a man seised of land.in fee, have issue two sons, and die seised, and the youngest son enter by abatement .into the land, and hath issue,- and dieth seised, and the land descend to his heir, and the issue enters, in this case, the eldest son and heir may enter by the law upon the issue of the younger son, notwithstanding the descent; because, that when the youngest son abated before any entry by the youngest son, the laio intends, that he entered claiming as heir to his father; and for that the eldest son claims by the same title, that is to say, is heir to his father, he and his heirs may enter. But, (he says in sect. 397,) the case is different if the eldest son enter and is seised, and afterthe youngestson disseiseth him, because the youngest son cometh to the lands by wrongful disseisin done to his eldest brother, and is like a stranger. In sect. 398, he puts the case of coparceners. In the same manner, if a man seised of land has issue, two daughtersj and dieth, the eldest daughter enters into the lands claiming all to her and thereof solely taketh the profits, and has issue and dies seised by which her issue enter, &c., yet the younger daughter or her issue, as to the moiety, may enter upon any issue of her elder daughter, for that they claim hy one same title. So in note 175, by Lord Nottingham to Co. Lit. one coparcener cannot be disseised without actual ouster, and claim shall not alter the possession.
According then to these, the highest authorities in the land, the entry by one coparcener into the whole, claiming it all and taking the rents and profits of the whole to herself, is no disseisin, or at any rate if it is so at all, can only be at the election of the disseisee. There must be something more — there must be some plain,- decisive and unequivocal act or conduct on the part of the coparcener who [190]*190enters, amounting to an adverse and wrongful possession in herself and disseisin of her companion. Several cases of this kind are put by Lord Coke, and may be infinitely varied in each particular case. “ Thus,” he says, “ if both sisters had entered after the death of their father and were seised, and then the eldest disseised the younger of her part, and was thereof seised in fee, and hath issue, the younger nor her heir cannot enter. Co. Lit. 242. So if one coparcener enter claiming the whole, make a feoffment in fee, and taketh back an estate to her and her heirs, and has issue and dies seised, this descent takes away the entry, because by the feoffment the privity of the coparcenary is destroyed.
That the same rule applies with equal force to joint tenants and tenants in common; viz, that the entry of one shall generally be taken as an entry for his companion as well as himself, is every where admitted. Children taking by descent under our laws as statutory heirs, though they hold as tenants in common, yet are in many respects in the nature of coparceners, and they take, like coparceners, by one and the same title; and there is a similar privity of estate between them, to destroy which a disseisin must be made by any one entering as heirs.
The modern cases,- generally speaking, have conformed to the principles laid down by Littleton and Coke. In Reading’s case, Salk. 392, it is said, that between tenants in common theré must be an actual disseisin, as turning him out, hindering him to enter, &c. and a bare perception of profits is not enough. In Fairclaim v. Shochleton, 5 Burr. 2604, it was decided, that a perception of profits by one tenant in common alone without account, is no actual ouster — there must be an actual disseisin proved. It is true, that in Doe v. Prosser, Cowp. 217, it is commonly stated to have been held, that uninterrupted possession by one tenant in common without account, and without adverse claim for 36 years, was a bar to his companion; but there the tenant in common held over in her own right, after a partition for the life of her husband, and Lord Mansfield puts the case on the ground of a holding over after the particular estate was ended. Besides which, the jury found an actual ouster by presumption from the facts proved. Peaceable v. Read, 1 East 568, was a strong case; there a female tenant in common died, after having made an appointment of her share. The other claiming under a later instrument, made when she was insane, levied a fine soon after her death, of the whole, and received all the rents and profits for nearly five years without account.' Yet this was held no ouster, and that some act to that effect must be shown. Such an act appeared in the case of Doe v. Bird, 11 East 219, where it was decided that one tenant in common in possession claiming the whole, and denying possession to the other, is something beyond the mere receiving of rents, which is equivocal, and was evidence of an ouster. So in Lodge v. Patterson, 3 Watts, 74, the one brother put up the other’s share at [191]*191public vendue and became the purchaser himself, and held and occupied for 21 years and more under it.
- It thus appears that if Oliver Ormsby had desired to disseise his brother and sister, or either of them, and gain the exclusive and adverse possession for himself, it was easy for him to do so by various acts, of the design and effect of which, in point of law, there could have been no mistake. If he has not chosen to do so, we would not be obliged to impute to him, either while living, or now since his decease, a tortious and unjust proceeding, which he himself declined to adopt. The law rather considers him as faithful to the interests of those, so nearly related to him by blood, and as not willing to destroy the privity of estate existing among brothers and sisters, holding u.nder a common parent, by inheritance. In the inequalities of age, and separations of residence, which continually occur among us, on the descent of lands of inheritance to all the children equally, it must often happen, that one is placed in a position in which the care and preservation of the common property is thrown upon him, and a duty imposed, as well by regard for deceased parents, as by those intimate ties and feelings that connect together one family, and this duty is often cheerfully encountered.
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The opinion of the court was delivered by
Sergeant, J.
The only point in this case which distinguishes it from those already decided in the other cases, arises upon the statute of limitations. The defendant insisted, that the circumstances proved in the cause, were of such a nature, as that in point of law, the jury were bound to prestime an actual ouster of the plaintiff by Oliver Ormsby. The court below refused to give this binding instruction to the jury, but left it to them to decide, as a'matter of fact upon the evidence; and this leads to an investigation of the origin and grounds of the law on this subject, and of the principles settled in respect to it.
Littleton in his tenures, and Lord Coke in his Commentaries on Littleton, are perhaps sufficient to show us how the law existed in their days, and has been handed down to us. Littleton in sect. 396, says, if a man seised of land.in fee, have issue two sons, and die seised, and the youngest son enter by abatement .into the land, and hath issue,- and dieth seised, and the land descend to his heir, and the issue enters, in this case, the eldest son and heir may enter by the law upon the issue of the younger son, notwithstanding the descent; because, that when the youngest son abated before any entry by the youngest son, the laio intends, that he entered claiming as heir to his father; and for that the eldest son claims by the same title, that is to say, is heir to his father, he and his heirs may enter. But, (he says in sect. 397,) the case is different if the eldest son enter and is seised, and afterthe youngestson disseiseth him, because the youngest son cometh to the lands by wrongful disseisin done to his eldest brother, and is like a stranger. In sect. 398, he puts the case of coparceners. In the same manner, if a man seised of land has issue, two daughtersj and dieth, the eldest daughter enters into the lands claiming all to her and thereof solely taketh the profits, and has issue and dies seised by which her issue enter, &c., yet the younger daughter or her issue, as to the moiety, may enter upon any issue of her elder daughter, for that they claim hy one same title. So in note 175, by Lord Nottingham to Co. Lit. one coparcener cannot be disseised without actual ouster, and claim shall not alter the possession.
According then to these, the highest authorities in the land, the entry by one coparcener into the whole, claiming it all and taking the rents and profits of the whole to herself, is no disseisin, or at any rate if it is so at all, can only be at the election of the disseisee. There must be something more — there must be some plain,- decisive and unequivocal act or conduct on the part of the coparcener who [190]*190enters, amounting to an adverse and wrongful possession in herself and disseisin of her companion. Several cases of this kind are put by Lord Coke, and may be infinitely varied in each particular case. “ Thus,” he says, “ if both sisters had entered after the death of their father and were seised, and then the eldest disseised the younger of her part, and was thereof seised in fee, and hath issue, the younger nor her heir cannot enter. Co. Lit. 242. So if one coparcener enter claiming the whole, make a feoffment in fee, and taketh back an estate to her and her heirs, and has issue and dies seised, this descent takes away the entry, because by the feoffment the privity of the coparcenary is destroyed.
That the same rule applies with equal force to joint tenants and tenants in common; viz, that the entry of one shall generally be taken as an entry for his companion as well as himself, is every where admitted. Children taking by descent under our laws as statutory heirs, though they hold as tenants in common, yet are in many respects in the nature of coparceners, and they take, like coparceners, by one and the same title; and there is a similar privity of estate between them, to destroy which a disseisin must be made by any one entering as heirs.
The modern cases,- generally speaking, have conformed to the principles laid down by Littleton and Coke. In Reading’s case, Salk. 392, it is said, that between tenants in common theré must be an actual disseisin, as turning him out, hindering him to enter, &c. and a bare perception of profits is not enough. In Fairclaim v. Shochleton, 5 Burr. 2604, it was decided, that a perception of profits by one tenant in common alone without account, is no actual ouster — there must be an actual disseisin proved. It is true, that in Doe v. Prosser, Cowp. 217, it is commonly stated to have been held, that uninterrupted possession by one tenant in common without account, and without adverse claim for 36 years, was a bar to his companion; but there the tenant in common held over in her own right, after a partition for the life of her husband, and Lord Mansfield puts the case on the ground of a holding over after the particular estate was ended. Besides which, the jury found an actual ouster by presumption from the facts proved. Peaceable v. Read, 1 East 568, was a strong case; there a female tenant in common died, after having made an appointment of her share. The other claiming under a later instrument, made when she was insane, levied a fine soon after her death, of the whole, and received all the rents and profits for nearly five years without account.' Yet this was held no ouster, and that some act to that effect must be shown. Such an act appeared in the case of Doe v. Bird, 11 East 219, where it was decided that one tenant in common in possession claiming the whole, and denying possession to the other, is something beyond the mere receiving of rents, which is equivocal, and was evidence of an ouster. So in Lodge v. Patterson, 3 Watts, 74, the one brother put up the other’s share at [191]*191public vendue and became the purchaser himself, and held and occupied for 21 years and more under it.
- It thus appears that if Oliver Ormsby had desired to disseise his brother and sister, or either of them, and gain the exclusive and adverse possession for himself, it was easy for him to do so by various acts, of the design and effect of which, in point of law, there could have been no mistake. If he has not chosen to do so, we would not be obliged to impute to him, either while living, or now since his decease, a tortious and unjust proceeding, which he himself declined to adopt. The law rather considers him as faithful to the interests of those, so nearly related to him by blood, and as not willing to destroy the privity of estate existing among brothers and sisters, holding u.nder a common parent, by inheritance. In the inequalities of age, and separations of residence, which continually occur among us, on the descent of lands of inheritance to all the children equally, it must often happen, that one is placed in a position in which the care and preservation of the common property is thrown upon him, and a duty imposed, as well by regard for deceased parents, as by those intimate ties and feelings that connect together one family, and this duty is often cheerfully encountered. To throw it off, to attempt to deprive those so near, of their equal share of the inheritance of their parent, is nota design which every man would deem just and honourable, or desire to have imputed to him; for however it may have been in the earlier ages of the English law, for reasons not now, perhaps, well understood, yet now-a-days, titles gained from co-heirs by disseisin, are not much in accordance with our notions of justice and morals; especially among children of the same family as against each other. The Jaw, therefore, recognizes one entering as co-heir or co-tenant, as bailiff, trustee, or receiver for the others: equity allows him all charges incurred in the care and reasonable improvement of the property for the- common benefit, and the statute of Anne gives the others an action of account render against him, for the share of the rents and profits which he ought to pay over.
In looking at'the case before us, we are at a loss to discover any act or course of conduct on the part of O. Ormsby, amounting in law to a disseisin of his brother and sister. lie never turned them out, nor denied them possession. He never created a new title in himself or any other person under which possession was-held. He never in point of law, threw off’ the relation of brother and co-heir to assume the position of a stranger. All he did was to enter and' keep the possession, lease the property, and receive the rents, erecting fences and buildings, adapted to its cultivation and profit. He does not seem even to have claimed it as his own, though even that alone though accompanied with the receipt of the rents and profits, would not, according to many authorities, be an ouster. On the contrary he took out a patent in 1813, expressly in trust for himself and the other heirs of his father — and the lands were taxed in the name of [192]*192the heirs until 1820. So far as we can judge of his intentions by the evidence, there is nothing to justify the belief that he intended to claim or hold against his brother and sister: and even if there were, there is no evidence of any act or proceeding amounting to a disseisin of his brother John Ormsby, or his heir under whom the plaintiffs claim.
As to the other points raised in this case of the advancement and marriage, I refer to the opinion of the court delivered at this term, by Mr Justice Rogers, in the other Ormsby cases.
There is nothing in the bill of exceptions. The defect in the evidence (if any existed) was cured by the production of the deed itself immediately afterwards.
Judgment affirmed,