By the Court.
Benning, J.
delivering the opinion.
Possession, to be available as a defence under the Statute of Limitations, must be adverse to the title of the true owner, and must be held under a bona fide claim of right and color of title.
A forged writing maybe the foundation of a bona fide claim of right and color of title; but not without it is believed to-be a genuine writing.
Of course much more may a genuine writing be such foundation.
But, in ejectment, no writing can be received in evidence as a genuine writing, until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, of itself, is not evidence of the one thing or of the other. A writing, of itself, is evidence of nothing, [321]*321and therefore is not, unless accompanied by proof of some-sort, admissible as evidence.
And whether the object be to prove that a writing is genuine, or that it is spurious, the subscribing witness, if there be one, and he accessible, ought to be called; for he, it is to be presumed, is the person who knows better than all others that, the writing is genuine, if it is genuine, and spurious if it is. Spurious.
[1.] We think, therefore, that the Court erred in not excluding the bond introduced by the tenant in this case, until" the subscribing witness to it had been called, or some excuse had been given for not calling him.
Possession, to be available -under the Statute of Limitations, has to be adverse to the title of the true owner.
The possession of no person can be adverse to the title of" the true owner, unless the person intends it to be adverse to that title.
Nomne can intend a possession to be adverse to the title - of the true owner, which possession he considers himself as holding under the true owner.
Every one'who holds his possession under a bond for titles made by the true owner must, if the purchase money remains, unpaid, consider himself as holding under the true owner.
Therefore, no one who so holds, can intend his possession-; to be adverse to the title of the true owner. And therefore, the possession of no one who so holds, is adverse to that title..
So, equally, every one who holds his possession under a. bond for titles not made by the true owner, but which he believes to have been made by the true owner, and not by some-man personating the true owner, must, if the purchase money remains unpaid, consider himself as holding under the true owner. That must be his thought, if he believes the bond to-be genuine, whether it be genuine or not.
Therefore no one who so holds, can intend his possession to be adverse to the title of the true owner; and therefore, the [322]*322possession of no one-who so holds is adverse to the possession» of the true owner.
In these two sorts of possession, the result is .precisely the same, whether the bond be spurious or genuine, because in-these two , sorts, the intent of the holder is the same. In each, he intends his possession to be a possession under the* true owner. And intending this, he cannot intend the pos-session to be adverse to the true owner’s title.
But any possession may be adverse to the title of the true-owner if the holder of that possession intends it so to be.
And every holder of possession, it is to be presumed, intends the possession so to be, if he holds it under a person • Who, though not the true owner, claims adversely to the true-.owner.
And a person who sells land as his own claims the land adversely to the true owner, although in the sale he may personate the true owner, and use a name as his own that is the - name of the true owner. He says, in effect, I am the true - owner, and the name on which the title stands is my name..
And the person that would be the purchaser from him, would of course claim and hold the land as he had claimed' and held it; that is, adversely to the title of the true owner..
To illustrate: C is the owner of a lot of land. A goes to B and says to him, that he is agent for C to sell the lot, and? •sells the lot to B, with the understanding that the title is to • be made by C, when the purchase money shall have been paid by B, and that he is to get from C for B C’s bond to ■ •that effect. A brings a bond to B, with C’s name signed to • it, and delivers it as the bond of C. The bond is a forgery. B. , takes possession under it. B does not hold adversely to • C, because he thinks he is holding under C; and so think- ~ ing, it cannot be supposed that he intends to hold adversely - to C.
But take the case to be, that what A says to B is, that he,, A, is C, and that as 0 he sells to B the lot; and as 0, makes the bond and delivers the possession of the lot. B, in this, case, holds adversely to C, because he thinks he is holding1 [323]*323•under A, although, he also thinks that A is C, and thinking that he holds under A, it is to be supposed that he intends to ■hold under A; and therefore, intends to hold adversely to C.
All which being so, these consequences follow in respect to ¡this case.
[2.] If Rush and his assignees held the land under .a bond "really made by Zettler, the drawer, and the purchase money ■.remained unpaid, they did not hold the land adversely to .Zettler’s title.
[2.] If they held under a bond in Zettler’s name, though not made by Zettler, but which they believe to have been •made by him, and not to have been made by some other per-T •son whom they took to be him, they did not hold adversely >to his title.
[2.] Rut if they held under a bond which was made by -some other person than Zettler, but which was made by that person as Ms own bond, and not as Zettler’s bond, they did -hold adversely to Zettler’s title, although that person might, '.in making the bond, have personated Zettler.
And these, we think, are the three propositions which the Court should have given in charge to the Jury, instead of 'the proposition which it did give in charge to them. There ; is evidence to warrant the giving of each of them.
And they cover the grounds covered by all the requests to ■■ charge, except one.
And these propositions contain nothing inconsistent with the decision made in this case when it was last before this Court. The decision then made, was merely that certain -testimony was not irrelevant, viz: testimony to show that the signature to the bond was a forgery, and to show, by a description of Zettler, that the person who gave the bond must have been a different person from him. This was the decis>ion, and this is entirely consistent with what we now say. If ¡there are any expressions in the opinion that go beyond this, they of course do not, as authority, rank with the decision •which says this.
The part of the requests not thus disposed of, is that con[324]*324tained in the third of the grounds taken for a new trial. As to that, we say that we consider the proposition contained in that to be substantially true.
[3.]
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court.
Benning, J.
delivering the opinion.
Possession, to be available as a defence under the Statute of Limitations, must be adverse to the title of the true owner, and must be held under a bona fide claim of right and color of title.
A forged writing maybe the foundation of a bona fide claim of right and color of title; but not without it is believed to-be a genuine writing.
Of course much more may a genuine writing be such foundation.
But, in ejectment, no writing can be received in evidence as a genuine writing, until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, of itself, is not evidence of the one thing or of the other. A writing, of itself, is evidence of nothing, [321]*321and therefore is not, unless accompanied by proof of some-sort, admissible as evidence.
And whether the object be to prove that a writing is genuine, or that it is spurious, the subscribing witness, if there be one, and he accessible, ought to be called; for he, it is to be presumed, is the person who knows better than all others that, the writing is genuine, if it is genuine, and spurious if it is. Spurious.
[1.] We think, therefore, that the Court erred in not excluding the bond introduced by the tenant in this case, until" the subscribing witness to it had been called, or some excuse had been given for not calling him.
Possession, to be available -under the Statute of Limitations, has to be adverse to the title of the true owner.
The possession of no person can be adverse to the title of" the true owner, unless the person intends it to be adverse to that title.
Nomne can intend a possession to be adverse to the title - of the true owner, which possession he considers himself as holding under the true owner.
Every one'who holds his possession under a bond for titles made by the true owner must, if the purchase money remains, unpaid, consider himself as holding under the true owner.
Therefore, no one who so holds, can intend his possession-; to be adverse to the title of the true owner. And therefore, the possession of no one who so holds, is adverse to that title..
So, equally, every one who holds his possession under a. bond for titles not made by the true owner, but which he believes to have been made by the true owner, and not by some-man personating the true owner, must, if the purchase money remains unpaid, consider himself as holding under the true owner. That must be his thought, if he believes the bond to-be genuine, whether it be genuine or not.
Therefore no one who so holds, can intend his possession to be adverse to the title of the true owner; and therefore, the [322]*322possession of no one-who so holds is adverse to the possession» of the true owner.
In these two sorts of possession, the result is .precisely the same, whether the bond be spurious or genuine, because in-these two , sorts, the intent of the holder is the same. In each, he intends his possession to be a possession under the* true owner. And intending this, he cannot intend the pos-session to be adverse to the true owner’s title.
But any possession may be adverse to the title of the true-owner if the holder of that possession intends it so to be.
And every holder of possession, it is to be presumed, intends the possession so to be, if he holds it under a person • Who, though not the true owner, claims adversely to the true-.owner.
And a person who sells land as his own claims the land adversely to the true owner, although in the sale he may personate the true owner, and use a name as his own that is the - name of the true owner. He says, in effect, I am the true - owner, and the name on which the title stands is my name..
And the person that would be the purchaser from him, would of course claim and hold the land as he had claimed' and held it; that is, adversely to the title of the true owner..
To illustrate: C is the owner of a lot of land. A goes to B and says to him, that he is agent for C to sell the lot, and? •sells the lot to B, with the understanding that the title is to • be made by C, when the purchase money shall have been paid by B, and that he is to get from C for B C’s bond to ■ •that effect. A brings a bond to B, with C’s name signed to • it, and delivers it as the bond of C. The bond is a forgery. B. , takes possession under it. B does not hold adversely to • C, because he thinks he is holding under C; and so think- ~ ing, it cannot be supposed that he intends to hold adversely - to C.
But take the case to be, that what A says to B is, that he,, A, is C, and that as 0 he sells to B the lot; and as 0, makes the bond and delivers the possession of the lot. B, in this, case, holds adversely to C, because he thinks he is holding1 [323]*323•under A, although, he also thinks that A is C, and thinking that he holds under A, it is to be supposed that he intends to ■hold under A; and therefore, intends to hold adversely to C.
All which being so, these consequences follow in respect to ¡this case.
[2.] If Rush and his assignees held the land under .a bond "really made by Zettler, the drawer, and the purchase money ■.remained unpaid, they did not hold the land adversely to .Zettler’s title.
[2.] If they held under a bond in Zettler’s name, though not made by Zettler, but which they believe to have been •made by him, and not to have been made by some other per-T •son whom they took to be him, they did not hold adversely >to his title.
[2.] Rut if they held under a bond which was made by -some other person than Zettler, but which was made by that person as Ms own bond, and not as Zettler’s bond, they did -hold adversely to Zettler’s title, although that person might, '.in making the bond, have personated Zettler.
And these, we think, are the three propositions which the Court should have given in charge to the Jury, instead of 'the proposition which it did give in charge to them. There ; is evidence to warrant the giving of each of them.
And they cover the grounds covered by all the requests to ■■ charge, except one.
And these propositions contain nothing inconsistent with the decision made in this case when it was last before this Court. The decision then made, was merely that certain -testimony was not irrelevant, viz: testimony to show that the signature to the bond was a forgery, and to show, by a description of Zettler, that the person who gave the bond must have been a different person from him. This was the decis>ion, and this is entirely consistent with what we now say. If ¡there are any expressions in the opinion that go beyond this, they of course do not, as authority, rank with the decision •which says this.
The part of the requests not thus disposed of, is that con[324]*324tained in the third of the grounds taken for a new trial. As to that, we say that we consider the proposition contained in that to be substantially true.
[3.] “ The law, however, deems every person to be in the legal seizin and possession of the land to which he has a perfect and complete title; and this seizin and possession is coextensive with his right, and continues till he is ousted thereof by an actual possession in another, under a claim of right. This may be considered a settled principle of the Common Law, and has been recognized and adopted as such by the Supreme Court of the United States.” “ So long, for instance, as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent; nor will a continued possession, after such 'declarations, avail to mature a title under the Statute of Limitations, until the party has changed the character of his possession, either by express declaration or by the exercise of acts of ownership inconsistent with a subordinate character.” (Ana. Lim. ch. 31, see. 5.) And see ch. 33, sec’s 1, 5, 6, 7, 8, 9; ch. 32, sec. 11.
This we regard as a correct statement of what the law is, on the subject to which it refers.
Therefore, we think that if Rooty entered as “ a squatter” •• — entered disclaiming title, he was to be considered as holding the possession as tenant at will to the true owner, and as remaining such tenant until something happened which might ■serve to notify the true owner that Booty had ceased to hold as such tenant and was holding adversely to him. What this something would have to be, we do not undertake to specify. We think, however, it would have to be somewhat more than a private attornment to the tenant to another claimant of the land.
And whatever is true of Booty, must be equally true of those deriving title through him. And the tenant, Griffin, ■derives his title, as against Zettler, through him, so far as that title depends on possession.
So, there must bo a new trial.