Sailor v. Hertzog

4 Whart. 259, 1839 Pa. LEXIS 206

• Court: Supreme Court of Pennsylvania
• Decided: February 16, 1839
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy, J. —

On the trial of this cause at Nisi Prius, several questions of law were raised and discussed by the counsel concerned; upon which it became necessary for the learned judge, before whom the cause was tried, to instruct the jury. His instruction to the jury on these questions has been excepted to by the counsel for the defendants, and, among other matters, assigned by them as reasons for a new trial. After a very full and elaborate discussion of them by the counsel on both sides, and a deliberate consideration of them on our part, we are well satisfied that they were correctly answered by the judge in his charge to the'jury. The principles connected with and governing the solution of them, are stated with great clearness and precision by him, and applied with a degree of force and aptness that would seem to render the more clear and perfect demonstration of them unnecessary, if not vain: it will not therefore be attempted. But we think the verdict is decidedly against the weight of the evidence given on the trial of the cause, if not wholly and entirely so, and more especially as regards the nature of the possession and the duration of time, which the defendants and those under whom they claimed the right of property, as well as that of the possession, to the lot of ground in question, actually had and held it. It appears to us clear, from the evidence on the part of the defendants, that their possession, which is admitted now to exist, and that of those from whom they derive their right to it, cannot be considered other than adverse to the plaintiff’s claim, from its commencement; and that it has so continued down to the present time, even admitting the evidence given on the part of the plaintiff, and all that can be fairly drawn from it, to be true. Also, that the evidence-on the part of the defendants shows beyond all reasonable doubt, that their continuous possession had endured much more than twenty-one years before this action was commenced; and was therefore protected against the plaintiff’s claim by the statute of limitations. Both parties derive their respective claims to the lot by deeds of,conveyance from George Weiss. The plaintiff’s appears to be the first in point of time, both as to its execution and being put on record, and therefore was, without doubt, at one time the only valid one of the two. Whether* however, the plaintiff or Jacob 'Sailor, his grantor, and the immediate grantee of George Weiss, ever took the actual possession of the lot at all, is very questionable from the evidence. It does not ’ appear to have ever been assessed with taxes at any time in the name of Jacob Sailor, either as the owner or occupant of it. He obtained the title to it by a deed of conveyance from George Weiss on the 5th of July, 1788. Had he taken the actual possession of it, either by himself or his tenants immediately, or shortly after, and kept it even for the space of two or three years, it might naturally be supposed that the assessor would have come to a knowledge of it, and of course, as it was his duty, would haye made a return of it in Sailor’s name accordingly; nothing, however, of the kind appears. But it does appear that Jacob Peters, son and one of the executors of John Peters, to whom, with the other executors, the lot was devised to be sold, his father, the testator having purchased and obtained a deed of conveyance for it, on the 16th of February, 1789, from Jacob Ettwein, who, on the 2d of that same month, purchased and obtained a' deed of conveyance for it from William Henderson, who, on the 19th of the preceding month, purchased and obtained a deed of conveyance for it from George Weiss, who had, on the 5th of July preceding, as has been mentioned, conveyed it to Jacob Sailor, was assessed as the owner of a lot answering the location of the lot in question in the year 1791, the second year after his father purchased it, and in the same year, as it would seem, of his death; and so it appears to have been assessed every succeeding, year till 1798, when it was assessed as the estate of George Peters, another son and executor of John Peters, in whose name it continued to be assessed till 1805, when it was assessed in the .'names of Ley and Hupfeldt, who, as it may be inferred very fairly from the evidence, came into the possession as the tenants of Joseph Peters, who purchased of the executors of John Peters in April 1800 ; and it continued to be assessed to Ley and Hupfeldt till 1808, when, in addition to their names, Joseph Peters is superadded as the owner of the estate; and thus it continued till 1811, when the name of Hupfeldt is dropped, and the assessment made in the name of Daniel Ley alone, who, previously to that, in November 1809, had purchased the lot of Joseph Peters; so that from 1791, it was regularly assessed, as it would seem by the evidence, to some one or other of the Peters family, and those to whom it was transferred by them, down to the present time. This taken in connection with the verbal testimony given by the witnesses on behalf of the defendants, seems to establish very clearly that actual possession of the lot was taken by the Peters family, at least, as early as 1790 or 1791. First, the testimony of Conrad Wile says, that he removed opposite to the lot in 1793; that the Peters family occupied it at that time; he thinks they occupied the bake-house as such, though he does not recollect it distinctly; Jacob Peters died, “he thinks, of the fever in 1793; that after his death, a man of the name of Stammers, occupied it; he was a baker and followed that business ; but he cannot tell how long he continued to occupy it, nor under whom he held it, though they were intimate acquaintances. But as several of the witnesses- think that the Peters family had occupied shortly before, and as they lived, according to the evidence without doubt or contradiction, in a house on the adjoining lot, there being then no dwelling-house on it, the natural, if not the necessary presumption is, that Stammers took possession under the Peters family. For it is not to be believed, unless there were direct and positive proof of the fact, that they, considering themselves to be, as we are bound to suppose from the evidence, the undisputed owners of the lot, and having it close by their residence, constantly under their eye, would have permitted Stammers or any other to have taken possession of and to have occupied it, without it were taken under them. Nor, indeed, is it probable, seeing that they were then considered and reputed by every one in the neighbourhood to be owners of it, that Stammers or any one, excepting Jacob Sailor, would have attempted to take possession without their consent. John Greiner also testified, that John Peters was in possession of it before his death, which must have been, at least, as early as 1791, and that he was succeeded by his son Jacob, who died of the fever in 1793. He thinks that it was untenanted anterior to and after the death of Jacob Peters, before the occupancy of Ley commenced. According to the testimony of Edward Penington, Daniel Ley went in to the possession of the sugar-house on the lot in dispute, either in the year 1800 or 1801. And John Maybin, a son-in-law of John Peters, and also one of his executors, though he could not testify to the year that the Peters first took possession of the lot, yet he knew they were in possession of it in 1793; that they kept possession of it until the executors of John Peters, of whom he was one, sold it at a public sale to Joseph Peters; which, according to the deed of conveyance made by them, was in October 1804. Joseph Peters, as he testifies, was the youngest son of John Peters; that he took the possession and held it by himself or his tenant, as he believes, until he sold it to Ley andPIupfeldt. Pie believes Ley and Hupfeldt were the first who made a sugar-house of it. Pie also testifies that he understood that George Peters rented it first to Ley. None of these witnesses, though they resided in the immediate neighbourhood of the lot, ever heard of Jacob Sailor being the owner of or of his having any claim to it, until about the time this action was brought. They all understood and believed that the Peters were ■ the owners of it; which goes strongly to support and confirm the fact, that no possession was ever had of it from the time John Peters obtained his deed- of conveyance for it, down to the commencement ■of this action, that was not taken and held under the Peters claim. Catherine Craigen or Hanson, a sister of Jacob Sailor, and witness produced on the part of the plaintiff, is the only person who has even given a single spark of evidence to the contrary. She testifies that she knew her husband had received rent for Jacob Sailor, meaning for the lot in question, and sent it ’ to him in the country. The last time he received rent, according to her recollection, was in 1797 : and he stopped receiving it at that time on account of the sickness. She knows it was rent for this property, because her husband always received rent and sent it to Jacob Sailor in the country, who lived . then beyond the blue mountain. After, the sickness she went with her husband to the sugar-house, when they found strangers in the possession of it. Then her husband looked after the rent no longer, but sent word to Jacob Sailor to come down himself; that he accordingly came, and found strangers in the possession of it. But she does not know the name of any tenant of whom rent was received by her husband; nor does it appear that she ever saw any paid, at least she has not said so. She says, the first she knew of the property, was after her brother bought it, before the sickness of 1793. Then there was a bake-house on it, but she cannot tell whether it ■ was frame or brick, or how many-stories it was high, though she was in it several times; and her brother wanted her and her husband to live in it. That the tenants left it in 1797, on account of the sickness, and did mot return, though she can tell nothing about them, nor who they were, not even the name of any one; nor does she state how she knew, whoever they might be, that they were tenants to her brother. Her testimony is very questionable, if not wholly incredible; for in 1825, she gave it in the form of a deposition, without testifying to any of the matters as mentioned above, and testified to by her on the trial at Nisi Prius. .Instead of saying that the first she knew of the property, was after her brother Jacob purchased,’as she did on the trial at Nisi Prius, she in her deposition says, that as late as 1815, she then thought the sugar-house belonged to her 'deceased sister, to whom her brother Jacob was executor, and that her sister had left it to herself, her brother Jacob, and a surviving sister. She also states in her deposition, that at the same time she thought so, she went in company with her son-in-law, Isaac Young, to Daniel Ley, who was then in the possession of the sugar-house, to see if it belonged to him or not. That she ashed Ley, if it belonged to her brother, or no; Mr. Ley said he had bought it, but she could not recollect of whom he said he bought it: that he showed her the deed and other papers; and said they could not give him a good title, and he would not pay them any more money. In her deposition she gives her narrative plainly in such a way, as to make it be believed,’that she, not Isaac Young, called upon Ley, and that she alone had all the conversation with Ley relative to the sugar-house, that took place upon that occasion: in short, that Isaac Young did not even speak a single word to Ley then about it; but merely accompanied her to Ley’s that she might see and talk to Ley in regard to it. According, however, to the relation given by her on the trial at Nisi Prius, she expressly and directly contradicts all this, and says that she went thither because Isaac Young took her; that he went thither, after he got a power from Jacob Sailor, her brother, to look after the property; that she did not go thither to see if she had any claim to the property, because she knew she had none; that she went to see a friend on the Germantown road, while Young looked at the papers, which Ley showed him; that he showed him, not her, all his papers, bonds and every thing; and she does not testify that she spoke as much as one single word to Ley about the sugar-house or the property, but that Young said all to Ley that was spoken to him in relation to it. In her testimony to the arbitrators on the 11th of October, 1827, instead of going to see a friend while Young was looking at the papers shown to him by Ley, she said she went out and held the horse that they used in coming thither, as it was wild. Again, in her deposition she says nothing about either her brother having received rent for the sugar-house at any time, or her husband for him. The first time she testified to rent having been received, was on the trial of the cause before the arbitrators, when she said, “ my husband had the care of it, and to the best of my knowledge got some money for rent,” (without stating from whom,) “ and sent it to my brother; and then the sickness came on.” Before the arbitrators, she also said, she went to Ley’s with Young, who went thither to get rent, that Young clamed rent for the sugar-house ; yet Young does not testify that he made any such claim. Thus it is seen that the several narratives given by her at different times of the interview with Ley, and relative to the property in question generally, form a tissue of contradiction, which cannot possibly be reconciled. The fact then of Jacob Sailor’s having received rent, either directly or indirectly, for or on account of the sugar-house, standing entirely upon the evidence of Catharine Craigen or Hanson, for its support, cannot with any propriety be said to have been proved. Besides the facts established by the written evidence, which is not, and, as I apprehend, cannot be contradicted or impugned, to wit, that the property was returned by the assessor as the estate of John Petei’s, as early as the year 1791, and continued to be assessed with taxes in the names of several of the Peters family, as the estate of one or other of them, until they passed it away to strangers, together with the acts of ownership exercised by them over it in making sales thereof, both public and private, go strongly to disprove all that Mrs. Hanson has said in regard to the rent being received by her husband for her brother, or by her brother himself; and to prove at the same time, that the Peters family asserted their claim to the sugar-house, and the lot upon which it stood, and as it were kept it up by a continual claim, by means whereof, as also by their having occupied the same either themselves personally or by their tenants, they acquired the reputation of being notoriously the owners thereof, while Jacob Sailor was wholly unknown as ever having a claim thereto: but this could not well have been the case, had he ever been in the actual possession of the property, either himself in person, or by his tenants, as his sister has testified. , ,

This written evidence just noticed, while it goes to impugn the testimony of Mrs. Hanson, and taken with itself, to render it altogether unworthy of credit, strongly tends to support and strengthen the parol evidence given on the part of the defendants, of the early and long-continued possession of the property having been actually-taken an'd kept by tne defendants and those under whom they claim: so that there1 is really no room left.to doubt that they took and have had the actual adverse, entire, distinct and obvious possession of the premises in question, for. a much longer period than that required by the statute of limitations, not only to protect them in their present possession, but to enable them to recover it in ejectment .if they should be expelled.

But it has been contended and urged strenuously by the counsel for the plaintiff, that, even admitting the possession of those under whom the defendants claim, to have been originally adverse, yet the testimony of Catharine Craigen, Isaac Young and Henry Kalback, proves clearly, that it became otherwise in the year 1815, before the statute of limitations had fully run. That from their evidence the jury were warranted in finding that Daniel Ley, then in the actual possession,, consented and- agreed to hold under,Jacob Sailor, from that time forward. Although I think the evidence of the defendants was -abundantly sufficient to show that the statute of limitations had run before 1815, yet supposing it was not, we are of opinion that the testimony of Catherine ■ Craigen, Isaac Young, and Henry Kalback, or that of any other witness produced on the trial, does not go to 'prove any consent given, or agreement made by Daniel Ley, that he would give up all claim of right tothe property and the possession of it, and thenceforward hold the possession thereof under Jacob Sailor. The utmost that can be fairly - deduced, from all that these witnesses testify to, that he either said or did-, is, that he was willing to compromise, and to give something in order to extinguish Sailor’s claim; though I am far from thinking that much credit ought to be attached to their evidence, even if it were material to the matter in issue between the pdrties, on account of the discrepency in the several narratives given by the two first at different times, and the bad character of the third as to truth. Mrs. Craigen, who had, according to her deposition, all the conversation herself with Ley in 1815, when she went to his house in company with her son-in-law, Isaac Young,. does not state that any thing was then said by Ley about his- being' willing to lease of Sailor or to purchase of him, or evento compromise ; but merely says, that he told her, that he had bought the sugar-house, but the person of whom he bought could not give him a'good title, and he did- not mean therefore, to pay him the rest-of the purchase-money. She, however, afterwards in- her evidence before the arbitrators, transposes herself and Young; and instead of testifying .as she did in her deposition, that she went accompanied by Young, to see Daniel Ley, and to speak to'him concerning the property, and that she did do so, she testified that Young being the agent of her. brother, went to see Ley, to get rent of him -for the sugar-house, and that she went along; that Young told Ley he had come for rent for Jacob Sailor; to which Ley replied that he hoped he would not,distress him; that he had bought the property, and would pay no more money, because the title of Jacob Sailor was clear; requested Young to send for Sailor and he would try and compromise if he could. Young claimed rent for the-bake-house in Sterling alley. Mr. Ley said nobody had a clear title but Jacob, and he should pay no more money till he got the title of Mr. Sailor: he would try. and compromise with Mr. Sailor. Young got no rent, but Ley told him to send for Jacob Sailor, (who, as she testified, was then over the mountains, and'had been gone' a good while, though according to Young’s testimony at Nisi Prius, ‘ it would seem, he was in or about this city,) and he would- try and compromise with him. On the trial at Nisi Prius she testified, that in 1815 she wrent with Young to Ley’s: that Young said to Ley, “ we have come to look after the property of Sailor, for you must do something about the property; you must pay rent, or buy it, or do something; if you don’t I must commence a law-suit against you.” Ley replied, “•! will not pay any more money to any body, for I find the property is Jacob Sailor’s: I hope you won’t distress me: send for Sailor, and I will buy it of him, or compromise with him; for I find there is no other title than Jacob Sailor’s ; and I will, pay no money to Peter-man.” But at no time does she testify, that Ley said he would take a lease of Sailor, or pay rent to him for the property; but simply that he believed Sailor had the only good title there was for it; and therefore he wouid-pay no more money on his purchase of it; that he would buy or compromise if he could, with . Sailor, if Young would send for him, so that he could see. Sailor himself; from which, —even giving credit to what it is difficult if- not impossible to believe, — when taken altogether, the most that can be inferred is, that Ley being induced from what was said and shown to him, to think that Sailor’s title might be the best, was willing to compromise with Sailor by giving him something for it, if they could agree: but certainly not that he was willing to surrender the possession of the property to Sailor, or to become his tenant, or to hold the possession of it under him, upon any terms. So that, admitting all that Mrs. Craigen or Hanson has said to be true, she proves nothing which in its effect could have terminated the running of the statute of limitations.

The testimony of Isaac Young is relied on also, to show that, although the possession of Ley was adverse anterior to 1815, yet it then became otherwise by his agreement. It is therefore proper to recur to it in order that we may see to what extent it goes in this respect. He testifies as follows: “Jacob Sailor in 1815 requested me to look after his property ; gave me a power of attorney for that purpose. After getting a copy of the deed of conveyance to Sailor for the property, I called on Ley, at his residence in Sixth street above Cadwallader street,' asked him if he possessed the bakehouse in Stirling alley : he said he did. I told him I called to inform him that that property belonged to Jacob Sailor, and that I was his agent, and had come to demand it. I showed him the power of attorney and the original .deed. . He ‘produced his writings to show me that he had purchased the property of Peterman or Peterson, though not quite sure of the name. He said he had not paid the whole of the purchase money; and he would pay no more to Peter-man : said he was satisfied the property belonged to Jacob Sailor, that he had the right title. I told him something must be done, or I should have to bring a suit against him. Pie said he hoped I had not come to distress him: I told ■ him it was not my intention to distress him; I was willing to compromise on the most amicable terms. He then requested me to send Sailor to him, and he would purchase the property of .him, or pay him rent. Nothing further was said then. I informed Jacob Sailor of it, and he asked me to meet him at Fouquet’s, corner of Tenth and Cherry streets.” This witness states further, that Sailor and Ley had a meeting after-wards in December of that year, 1815, at Fouquet’s, when the one offered to sell for a certain sum of money, and the other to purchase at a much less sum: that they came to no agreement of purchase or compromise; nor does it appear that any thing was said about paying rent for the property; and they separated, as it would seem, without even coming to any agreement to have any further meeting about the matter in dispute; at" least the witness - heard of none. Now from the evidence of Young, supposing it to be true, which, however, there is some reason to doubt, it is manifest that nothing was ever agreed on, except to have a meeting between Sailor and Ley at Fouquet’s, with a view to effect a compromise, if they could. Young, it would seem, according to his evidence, first proposed to compromise the matter himself, on behalf of Sailor, with Ley, but Ley declined this, and requested that he should send Sailor' himself to him, and he would purchase of him, or pay him rent-The plain import of which was, that he was willing to do the one or the other, provided they could agree first upon the terms, but certainly not either, without an agreement could be made between them, regulating the terms and conditions upon which either the one or the other should be done. But unless this could be accomplished, the inevitable conclusion was, that they were to remain, in regard to the property, as they stood before any thing passed between them in relation to it. Subsequently, according to what was agreed on at the interview between Young and Ley, a meeting took place at Fouquet’s, between Sailor and Ley, at which Young was present, as he says, but they separated without coming to any accord whatever, as it would appear, on the subject; consequently their relation to each other could not be changed, nor in any respect be regarded as different from what it was, anterior to Young’s first calling upon Ley and making known to , him Sailor’s title to the property. The statute of limitations therefore was left to run its course, which was terminated before the commencement of this action, long enough to put an end to all claim on the part of the plaintiff.

But, as I said before, there is great reason to distrust the accuracy of Young’s testimony, as given by him on the trial of the cause at Nisi Prius; because in a deposition given by him on the 17th of February, 1826, he does not say a word of his having a power of attorney from Jacob Sailor, but merely says, that as his agent, he called upon Ley in 1815, who was then in possession of certain premises in Sterling alley, the property described in the declaration, (meaning the declaration or description of the property filed and claimed in this action,) when Ley stated to him he believed the plaintiff had the oldest title to the premises, and that he Ley would call and see him, instead of requesting Young, as he testified at Nisi Prius, to send Sailor to him, that he might see him. Neither does he, in his deposition, say a scintilla of Ley’s ever proposing to purchase or to pay rent or make a compromise. But he states one thing in his deposition, which he has never testified to since, that Ley said he knew of Sailor’s title at the time that he (Ley) purchased. In his testimony before the arbitrators on the 13th of October, 1827, he says “in October, 1815,1 waited on Ley, to know what he was willing to do, to compromise, or stand a law-suit, or pay rent. Ley then stated that he was willing to compromise ; that he had purchased the property and paid part of the money, but he found they would not give him a good title, and he would pay no more. He stated also, that he believed the old man, Jacob Sailor, had the right title. He promised me he would make it his business to try to see Jacob Sailor in order to compromise; he said he was willing to buy the property of Jacob Sailor if he could make him a title.” But he does not testify that Ley said he would or was willing to pay rent to Sailor upon any terms whatever. So that he would seem to have aimed at improving his testimony for the plaintiff at Nisi Prius, as to Ley’s saying he would pay rent if they could agree. But still, supposing all to be true that he has testified to, it only goes to prove that Ley was willing to make a compromise and to pay something in ordér to obtain it, that he might avoid a lawsuit and,, hold the property in peace ; but clearly, not to prove that he was willing to give it up to Sailor unconditionally, and to hold the possession thereof under him. Young also testifies to Sailor and Ley’s having an interview, but says, in his deposition, he cannot recollect what took place: but in his evidence afterwards before the arbitrators he says, they met at Fouquet’s, where he stated to Ley, that he came with Sailor to comÍromise about the property in Stirling alley, whereupon Ley said to acoh, ‘ have you made up your mind to comply with my offer V Jacob said no; my nephew says you have not offered me enough. Ley replied, he thought he had made him a generous offer.” Then, as the witness says, he left them together, and could not say what took place afterwards. Thus it is evident these two witnesses, Craigen and Young, for the plaintiff, are inconsistent both with themselves and with each other. But giving full credit to all that they have said, it only goes to show an attempt made'to effect a compromise, which failed entirely.

The only remaining testimony given on the part of the plaintiff, that has been mentioned as having any bearing on this part of the case, is that of Henry Kalbáck. It, however, only goes to prove that Ley was in the actual possession and occupation of the property more than twenty years before the trial of the cause at Nisi Prius, when he went first with Jacob Sailor to the property in Sterling alley, where they saw Ley, to whom Sailor presented some deeds, saying the property was his. Ley was a little started; said he bought the property; did not care much about him-, and seemed to be a little angry. Sailor told Ley that if he did not settle with him in friendship, he must take the law. Ley said he would consider of it, and perhaps they could settle it: About two years after that, the witness went with Sailor again to Ley, when Sailor asked a thousand dollars of Ley for his right to the property, and Ley offered two hundred ,• when they parted, without coming to’ any agreement. Ley afterwards authorised the witness to offer Sailor five hundred dollars. Long after that Sailor called a third time on the witness, to go with him to Ley, when he did so; but Ley was busy then, and they agreed to meet each other on a subsequent day at Fouquet’s. Thev accordingly did so, but could not settle; and parted, as it would seem, without making any further appointment for meeting again, on the subject. Admitting all that Kalback has said to be true,.it would seem to be impossible that any conclusion should be drawn from it, that Ley had ever yielded any thing whatever to Sailor, but that they parted finally, in regard to the property, as they first met, each retaining his position and his right whatever it was. There is therefore no pretence for saying that Kalback’s evidence tended to estar blish any thing which could prevent the statute of limitations from running in favour of the defendants. Under this view of his testimony, it is scarcely necessary to observe, that even if it had tended to prove any thing that would have prevented the statute from operating, the jury, from his general bad character for truth, as it appeared in evidence to them, ought to have disregarded his evidence.

That Daniel Ley, as well as those under whom he claimed the right of possession of the lot of ground in question, was in the actual possession of it for many years, claiming and using it as the true and absolute owner thereof, cannot be doubted from the evidence. They even sold and transferred the fee simple estate in it several times; which may be regarded as the highest possible acts of ownership that could well be exercised over such property; thereby showing to demonstration, as it were, that they claimed and held it, not only adversely to Jacob Sailor, but to all the rest of the world. Then under such circumstances, supposing it to be true, that Ley was called on by Jacob Sailor or his agent, and after being made acquainted with Sailor’s title to the property, had said, “ I have bought and paid part of the purchase-money for it, but finding, as I have now some reason to believe, that Sailor’s title is the best or the only good title to it, I am willing to compromise, to buy and give something, or to rent, provided Jacob Sailor and I can agree ; and I will make it my business to see him, so that we may try to come to some agreement on the subjectand accordingly Ley afterwards had seen Sailor, when it was agreed that they should meet on a certain day at a certain place, for the special purpose of endeavouring to make some arrangement for settling the matter amicably between them ; that in pursuance thereof, they had met each other ; and after treating for a compromise, but finding that they could make none, they had parted without even agreeing to have any further meeting on the subject, what would all this have amounted to ? If it were to be held equivalent to an agreement on the part of Ley to give up the adverse character of the possession, which he had held so long previously, and that thereafter he would hold under Sailor, it would be most singular, if not infinitely worse, because it would be imposing upon him the effect of an agreement which the parties never endeavoured to make, or if they did, they failed to accomplish. To establish such a principle, would not only .tend necessarily to prevent all attempt to compromise or adjust .amicably differences, arising between men, but likewise, to divest them of their rights, as if they had bound themselves by their agreement to do so. At the very utmost, therefore, all that was said or done by Ley, can only be considered as an overture to a compromise between him and Sailor. This, however, according to all the evidence even on the part of the plaintiff, they were unable to effect: •consequently all that passed between them goes for nothing. This conclusion is sustained by the subsequent conduct of the parties; for. after the last meeting that we hear of between them, Ley is suffered ■ by Sailor to remain in the possession as before, until he sells and disposes of the lot as his own; and those claiming under him remainafterwards, for a period of-fifteen or eighteen years, without claim to rent for the lot, or for the lot itself being made by Sailor; which is wholly incompatible with the idea having been entertained by either Sailor or Ley, that the relationship of landlord and tenant had been created between them, from any thing that had passed or taken place. It seems, therefore, that there is no just ground for stripping Ley of the adverse possession which he most unquestionably had at first, of the lot. Unless the acknowledgment of title, by the tenant in possession, who has been in previously, holding it as the absolute owner, or adversely • under any circumstances, be made in such manner as to show that he'intends to hold the possession no longer adversely, but in future under the party making the claim of right to, the land against him, and so as to induce the latter to believe that he will so hold it, there is no reason why the statute of limitations should not continue to run its course as it was doing before.

Without such an acknowledgment, the real owner, or party claiming the land as such, if he lies by until the twenty-one years have run, and then the tenant in possession sets up the statute as a bar to his subsequent claim, has no just ground to complain that he was deceived, by any thing that the tenant in possession, either said or did. The tenant is not chargeable with having practised any deception; or with' having even attempted to induce a belief that he would in future hold the land otherwise than he had done before: and much less -can he be said to have violated any engagement, either express ■or implied in respect to holding the possession for or under the party claiming adversely to him, because he cannot be said to have made any engagement of the kind.

Then admitting every thing to have passed between Sailor and Ley, which the evidence has any tendency to prove, it is impossible fairly to come to the conclusion, that Ley was willing to make an unconditional surrender of his adverse possession; or that without some specific agreement being first made between him and .Sailor for that purpose, he was willing to hold under Sailor, or to relinquish the claim purchased by him to the lot, and under which he then held possession of it. For had this not been the understanding of both parties, there was no use in their meeting, as they did, with a view to make such agreement if they, could: but having met according to appointment and broken up without coming to any such agreement as had been mentioned between them, each had every reason to believe that he stood in his original position and upon his original rights. The design of the legislature, in passing the statute of limitations, is not to be frustrated by putting a construction upon what passed betweén the parties, different from their Understanding of it. The statute itself is a wise one, and entitled to a favourable construction as also operation. It is founded upon principles not only of public policy, but of natural justice, which the' experience of almost every civilized country has fully approved. The natural effect of it, is to promote the peace and quiet of the community; and at the same time, to advance greatly the prosperity of it, by giving repose and protection to all, who have been in the actual possession and enjoyment of lands, using them as their own for a period of twenty-one years: so that after that, where they had any doubt of the goodness of their titles thereto before, they may have none, but go on with confidence to improve and render them more valuable; and thereby increase their own wealth and strength as also that of the state. It is by the proper application of this statute that men, in many instances, are made secure in the enjoyment of their property, which, it may be truly said, in the wild and uncultivated parts of the state, they have bought not merely by the sweat of their brow, but with their blood as well as their money. It being then, as was said by the Court in Green v. Brivett, (2 Salk 422,) a statute on which the security of all men depends, it is to be favoured. Thompson v. Smith, (7 Serg & Rawle, 209.) And therefore twenty-one years adverse possession of land, by a party, will give him a good title to it, upon which he may either recover or defend in ejectment. Stokes v. Berry, (2 Salk. 420 ; S. C. Ld. Raym. 741; Holt, 264; 1 Mod. 287.) Smith v. Tyndal, (2 Salk. 685.) Frederick v. Searle, (5 Serg. & Rawle, 240.)

The verdict must be set aside and a new trial granted.

Rule absolute.