Townsend v. Boyd

66 A. 1099, 217 Pa. 386, 1907 Pa. LEXIS 721

• Court: Supreme Court of Pennsylvania
• Decided: April 1, 1907
• Docket: Appeal, No. 55
• Status: Published

Opinion

Opinion by

Mr. Justice Potter,

On November 16, 1892, Matthew Boyd gave a mortgage to Joseph B. Townsend to secure the sum of $13,000 upon a tract of 152 acres and a fraction, situate in Upper Chichester township, Delaware county. On March 30, 1894, a writ of scire facias was issued under this mortgage in the court of common pleas of Delaware county, judgment entered for want of an affidavit of defense, and the mortgaged premises sold under a levari facias to the executors of the mortgagee, and a sheriff’s deed made to them. Notice was given and proceedings instituted by the purchasers to obtain possession of the mortgaged premises; but Matthew M. Boyd, a son of the mortgagor, who was then in possession, made affidavit that he did not hold under Matthew Boyd, defendant in the judgment on the mortgage, but in his own right; and he gave his recognizance to appear at court to plead to a declaration in ejectment, etc. The present action was the proceeding in court, which was in effect an ejectment, with the mortgagees and purchasers at the sheriff’s sale as plaintiffs, and the claimant as defendant.

Upon the trial the plaintiffs offered in evidence the record of partition proceedings in the estate of Erasmus Morton, deceased, commenced October-29,1828, whereby a lot of ground, including part of the -premises here in dispute, was awarded to Aaron Morton. This was followed by other .conveyances, all treating the title as a fee simple, which finally assumed to vest it as such in Matthew Boyd, on March 25,1858. The remaining portion of the premises in dispute was- traced from the record of partition proceedings in the estate of Nehemiah Broomall, deceased, begun on November 28,1831, down through a chain, always treating the title as a fee, and assuming to vest it as such in Matthew Boyd, on March 21, 1865. Plaintiff offered in evidence the record of the mortgage of Matthew Boyd to Joseph B. Townsend, dated November 16, 1892, for $13,000, which was the basis of the proceedings out of which this controversy arises, together with the record of the foreclosure suit and judgment and the sheriff’s deed to plaintiffs.

Plaintiffs then called as a witness John M. Boyd, a son of Matthew Boyd, who testified that his father had resided on the mortgaged premises for a period of fifty-six or fifty-seven years, and during all that time witness never heard of anyone claiming to have .an interest in the farm except his father. Never heard it was leased until 1896 or 1897. His father paid thé taxes on the farm, and he never heard of anyone else paying them. No one else resided on the farm except his father. Plaintiffs also offered the triennial assessments of the property from 1866 to 1895, which were admitted under exception. Their admission is -the subject of the first assignment of error, but they are neither set out in the assignment nor printed in the paper-book. '. Plaintiffs also offered two satisfied mortgages, given by Matthew Boyd, which were admitted in evidence, subject to exception. The admission of these mortgages is the subject of the second assignment, but they are not set out.

In none of the papers offered in evidence by plaintiffs was there any reference to a lease, and in all of them the estate allotted, conveyed or mortgaged was assumed to be a fee. Defendant offered in evidence a lease, dated September 5,1681, from William Penn to William Withers for 500 acres of ground, and a release of same dated September 6, 1681, reserving a quit rent of one shilling for every 100 acres. Also a discharge of accrued rent, dated July 6, 1681. Also a lease for the same tract of 500 acres from William Withers to Thomas Withers, dated January 22,1682, lor a term of 2,000 years atan annual rental of “ one pepper corne at or upon the feast of St. Michaell the Archangoll, if the same be lawfully demanded, and also paying and discharging the aforesaid Chiefe or Quit Rent of one shilling yearly.” This was followed by various conveyances, wills and mortgages of this tract and portions of it, in most of which the grant was for the rest of the term of 2,000 years under the above lease. This chain of title to the leasehold estate extended down to the titles of Erasmus Morton and Nehemiah Broomall, but when their estates were partitioned in 1823 and 1831 it was assumed in the proceedings that each owned a fee in the land.

Defendant also showed that Matthew Boyd, Jr., the defendant here and Martha J. Boyd, during the pendency of the foreclosure proceedings, entered judgments against Matthew Boyd and issued executions under which the sheriff of Delaware county levied upon the residue of the term of 2,000 years given under the lease of William Withers to Thomas Withers, and sold and conveyed the same to the defendant. Defendant then called one of his counsel who was a conveyancer, who testified that he had examined the title to the land in controversy, and that it was all included in the 500 acres covered by the Withers lease.

Under this testimony the court refused to give binding instructions for either plaintiffs or defendant, and submitted to the jury three questions: (1) Whether the property here in question was within the tract of land leased in 1682 by William Withers to Thomas Withers; (2) whether there had been a grant or extinguishment of the landlord’s interest in favor of the predecessors in title, of Matthew Boyd; (3) whether there had been such adverse, hostile and exclusive possession, as to bar the setting up of the landlord’s title by the defendant. The jury found for the plaintiffs, in a general verdict, and there is nothing upon the record to show upon which of the questions submitted, the verdict was based.

The title of Matthew Boyd, the mortgagor, to the mortgaged premises was, as we have seen, traced directly back to two proceedings in partition, in the orphans’ court of Delaware. county. One in the estate of Erasmus Morton in 1823, and the other in the estate of Nehemiah Broomall in 1831. It was averred in the petitions for the inquests in these proceedings that each intestate died “ seized in his demesne as of fee ” of the land described, and the estates dealt with are throughout treated as freehold estates, and referred to as real estate and as that alone. The deed made by the administrators of Nehemiah Broomall to Robert Boyd, in pursuance of the sale under the partition proceedings, expressly undertakes to convey the fee. Aaron Morton, who took by allotment, and Robert Boyd, who took by deed, under the respective partitions, took “fee simple estates,” or else they took nothing. The .unexpired term of the Withers lease was personal property, and not susceptible of partition. The partition proceedings show no reference to any lease, and there was no apparent intention to deal in any way with a lease, and if there had been any such purpose, there was no jurisdiction in the orphans’ court to make partition of personalty.

A leasehold interest is not real estate, but merely a chattel real, which is personal property : Dalzell v. Lynch, 4 W. & S. 255; Williams v. Downing, 18 Pa. 60; Kile v. Giebner, 114 Pa. 381; Sterling v. Com., 2 Grant, 162; Wells v. Becker, 29 Pa. Superior Ct. 174.

In Bismark B. & L. Assn. v. Bolster, 92 Pa. 123, Mr. Justice Trunkey said (p. 129): “ A long term of years of very great value is not such an interestin land as is subject to the lien of a judgment; it is a chattel, subject to seizure and sale by a constable on an execution issued by a justice of the peace.” In Brown v. Beecher, 120 Pa. 590, Mr. Justice Clark said (p. 603): “But although the writing'of February 3, 1882, is a lease, it conveyed to Marsh an interest in the land, a chattel interest, however; the lease was a chattel real but none the less a chattel.”

If these predecessors of Matthew Boyd took estates in fee under the partition proceedings, then he also possessed the fee. But even if the partitions were void, the holdings of the parties were adverse to the rights of anyone claiming under the lease. During a period of over sixty years, all the wills, deeds and mortgages in the chain of title assumed to pass the fee and made no reference to any leasehold interest. For over thirty years prior to giving the mortgage, Matthew Boyd was in sole and undisputed possession of the entire tract, paying taxes thereon and exercising all the rights of an owner. This was shown by the record evidence and by the testimony of the witness John M. Boyd, his son.

We can find no evidence that Matthew Boyd, or any predecessor in title since the partition proceedings, ever acknowledged the title of another to the land, but on the contrary they all actually claimed the title in fee simple, in themselves. The genera] principle that a tenant is estopped from denying his landlord’s title is of course unquestioned. But in the present case Matthew Boyd, and his predecessors in title, took possession under a proceeding of record, in which the title was openly and avowedly claimed as a fee simple, and in absolute defiance of the claim of anyone in opposition thereto. And there is not a trace of any claim being made by anyone as landlord during a period of more than sixty years. The parties who took possession under the partition proceedings were fully justified in supposing that they were taking possession in fee. “ Where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse to the lessor, though derived, as here, from the tenant, his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. ... Of the facts that have been recognized as indicative of hostile intent, none are perhaps more decisive than the exhibition of a paper title, independent of that residing in the original owner, by color of which the party justifies his entry : ” Dikeman v. Parrish, 6 Pa. 210 (225).

We can see no evidence to sustain the claim that the relation of landlord and tenant ever existed between Matthew Boyd and the representatives of the lessor in the ancient lease which is here invoked to defeat his claim to a freehold estate. The defendant got more than he was entitled to, when the question of adverse possession was submitted to the jury. Under all the testimony, the court below might well have held the evidence of adverse possession to be conclusive.

Equally persuasive are the circumstances in raising a presumption of a grant or extinguishment of the landlord’s reversion prior to the partition proceedings in 1823 and 1831. After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such period, the courts will presume whatever grant may be necessary to quiet the title. It is not sufficient for a stranger to rest upon an ancient outstanding title. In Jackson v. Hudson, 3 Johnson, 375, Chancellor Kent said: “If- a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must-be one that is living and operating, otherwise the presumption will be that it has become extinguished.” This language, was cited with approval by Chief Justice Gibson in. Hasting v. Wagner, 7 W. & S. 215, where he said: “ These presumptions conduce to repose, and there is a growing tendency to encourage them not only here, but elsewhere. In Jackson v. Hudson (3 Johns. Rep. 375), the Supreme Court of New York were of opinion that to constitute a defense in ejectment an outstanding title in a third person must be a present and operative one, else it will be presumed to have been extinguished only by a conveyance, and to whom ? Not to the defendant who does not pretend to claim under it, but to the plaintiff who has claimed the tract for thirty years and acted as the owner of it.” The same chief justice in Taylor v. Douherty, 1 W. & S. 324 said, in referring to the case then before him: “We have the expenditure of money, not in a single contested act of ownership, but in acts repeated and persisted in for more than thirty years, as regards the ownership of the warrant, and without any adverse claim to it whatever. On every principle of authority and reason, this was sufficient not only to be left to the jury, but, in the absence of conflicting evidence, to command a verdict. The execution of a deed is presumed from possession in conformity to it for thirty years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine.” Many other cases to the same effect might be cited in support of this principle, such as Carter v. Tinicum Fishing Co., 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Presbyterian Church, 111 Pa. 164; Fletcher v. Fuller, 120 U. S. 534; United States v. Chavez, 175 U. S. 509. In the present case, under all these authorities, the evidence was, in our judgment, amply sufficient to sustain the presumption of a grant.

But in any aspect of the case, the mortgagor cannot set up as a defense to the mortgage, that he had no title to the premises: Penna. Company v. Beaumont, 190 Pa. 101; Faucett v. Harris, 185 Pa. 164.

When the defendant here purchased the interest of Matthew Boyd in the unexpired lease to Thomas Withers, he became the owner of only such interest and rights as the judgment debtor possessed. The defendant had full notice from the record that his father was in possession under a chain of title which purported to vest in him a fee simple estate, and he was also aware that his father had held himself out as the owner of the fee by mortgaging it as such, not only to the present mortgagee, but to others. The mortgage under which claim of title is made by the present plaintiffs was on record years before the defendant concocted his scheme and obtained his judgments, and made his purchase at sheriff’s sale. As he is a son of Matthew Boyd, he was presumably familiar with the fact of his father’s long and exclusive possession of the land in controversy. We see no reason for allowing to the defendant any higher rights than those possessed by his father. If the father should be estopped from setting up his want of title against his own mortgage, why should not the son, who claims through the father, be also estopped ?

The evidence of title upon the part of plaintiffs was in accordance with the abstract filed. Possession under that title was also shown. If plaintiffs’ evidence had stood alone, it would have been sufficient. The alleged title under the prior lease was set up by the defendant, and the claim of possession adverse to the lease was made, and the presumption of a grant in extinguishment of the lease was set up in rebuttal of defendant’s case. We do not see that this constituted any variance.

The assignments of error are all dismissed and the judgment is affirmed.