Mr. Justi é NELSON
delivered the opinion of the court. '
According to the true -construction of the will of Frederick
White, we are inclined to think that the widow was'.entitled to the possession and enjoyment of the premises in question down to the year 1809, when the son would have arrived at the age of fifteen had he survived, notwithstanding his death in 1800, some nine year's short of that time, as the .testator probably intended the rents and profits during this period as a part of her provision in the settlement of his estate. The right' of entry, therefore, did not accrue to the lessors of the plaintiff till that time. Then the widow and her husband were bound to surrender the possession to the son had he lived, and of consequence to his heirs at law in the event of his death.
The statute of limitations attached and began to run from this period, provided the evidence is sufficient to raise an adverse possession on the part of the defendants, in hostility to the title of the heirs.
This- suit was commenced in April, 1834, some twenty-five years from the time the right of entry accrued. The statute of limitations in the State of Pennsylvania is twenty-one years.
, The original possession of Eckert, the husband of the widow, being confessedly in subordination to the title of the younger White during his lifetime, and after his decease to the. title of the heirs at law, down to 1809, when the right to; occupy under, the will ceased, the burden lay upon, him to establish a change in the character of the possession after this period ; and being thus in privity with the title of the rightful owner, nothing short of an open and explicit'disavowal and disclaimer of a holding under that title, and assertion of title in himself,: or in his son, the half-brother, brought home to the lessors of the plaintiff, will satisfy the law:- Short of this, he will still be regarded as holding in subserviency .to the rightful title. There are authorities maintaining the doctrine, that a party standing in the relation of Eckert to the title in question is incapable in law of imparting, by any act of his own, an adverse character to his possession ; and that, in order to deny or dispute the title, he must first surrender the possession, and place the owner in the condition he stood before the possession was taken under him. This doctrine was supposed to govern the rights of trustee and
cestui que
trust, landlord' and tenant, vendor and vendee, tenants in common, &c., and that no lapse of time would lay a foundation for a statute bar to the right of entry by reason of an adverse possession between parties standing in this relation, or any others in like privity.
The law, .however, has been settled otherwise. The trustee may disavow and disclaim his trust; the -tenant, the title of his landlord after the expiration of his lease ; the vendee, the title of his vendor after breach of the contract; and the tenant in common, the' title of his cotenant ; and drive the respective owners, and claimants to their action within .the period of the statute of limita
tions.
2
Bos. & Pul. 542;; 5 Bara. & Ald. 232 ; Cowp. 217; 2 Stark. Ev. 887 ; 7 Johns. Ch. R. 90 ; 20 Johns. R. 565 ; 4 Serg. & Rawle, 310 ; 7 Wheat. 548 ; 3 Peters, 52, C. & H.'s note, Pt. 1, notes, 307, 311, and cases ; 2 Sch. & Lefr. 633; 2 Jac. & Walk. 1, 191.
The only distinction between this class of cases and those in which no privity between the parties existed when the' possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was originally taken and held in subserviency to the -title of the real owner, a clear, positive, and continued disclaimer and disavowal-- of the title, and assertion of an adverse right, and to be broughtihome to the party, are indispensable before any foundation can be laid for the operation of the statute. Otherwise, the grossest injusticr might be practised ; for, without such notice, he' might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate c laracter of the possession as the legal result of those relations.
The statute, therefore, does not begin to operate until, the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal- acts of the tenant, which must be open, continued, and notorious, so as to preclude aÚ doubt as to the character of .the holding, or the want of knowledge on the párt-of the owner. If he then neglects to enforce his rights by action within the period fixed by the statute, the loss, as ■ in, every other case of the kind, is attributable to his own laches, and not to the law.
The main question, therefpre, here is, as to the sufficiency of the proof. It appears,'that as early as 1809 the heirs claiming here instituted actions against Eckert, as executor of Frederick White, the testator, to recover their share of the personal estafé, as next of kin to the younger White, which were resisted, on the ground-the whole estate belonged to the half-brother,'and the claim defeated. Another branch of the same family, at an earlier date (1806), instituted actions, of ejectment to recover their share of the real estate, which were resisted upon like ground, and like result. Both branches of the litigation were brought to a close in 181,0. The latter branch (not the parties here) again renewed the litigation to recover the realty in 1816, which terminated in 1818 by compromise, with a view to put an end to the controversy, but which fell through' by reason of the failure of the plaintiffs to fulfil the conditions of the settlement.
The present is the first- suit brought, by this branch of the heirs to recover the real estate, and which was commenced after the lapse of twenty-five, years from the time -their right of entry accrued, and after the lapse of the same period, also, from the termination of a litigation on behalf of themselves and their co-heirs
to recover the estate, real and personal, hi which the present defendant succeeded. During all this time; their title has been disavowed and resisted^ and the right and title of the half-brother of die younger White asserted and maintained; and the property occupied, cultivated, and improved under this claim of title and ownership ; and portions of it are
noyf
in possession of
bona fide
purchasers, upon which large and valuable, erections and improvements have , been ma'de.
We are satisfied, therefore, that the court below were right in submitting the question of adverse possession to the jury ; as there was evidence enough, even within the strictest rules of law on this. subject, arising out of the fiduciary relation in which the defendant originally stood to the title, to make this the duty of the court. And, further, looking at all the facts and circumstances disclosed at the trial, and characterizing the possession, occupation, and improvement of the property, we cannot say that any error was committed in also advising the jury that a foundation was laid upon which they might presume a grant for the- purpose of quieting the title.
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Mr. Justi é NELSON
delivered the opinion of the court. '
According to the true -construction of the will of Frederick
White, we are inclined to think that the widow was'.entitled to the possession and enjoyment of the premises in question down to the year 1809, when the son would have arrived at the age of fifteen had he survived, notwithstanding his death in 1800, some nine year's short of that time, as the .testator probably intended the rents and profits during this period as a part of her provision in the settlement of his estate. The right' of entry, therefore, did not accrue to the lessors of the plaintiff till that time. Then the widow and her husband were bound to surrender the possession to the son had he lived, and of consequence to his heirs at law in the event of his death.
The statute of limitations attached and began to run from this period, provided the evidence is sufficient to raise an adverse possession on the part of the defendants, in hostility to the title of the heirs.
This- suit was commenced in April, 1834, some twenty-five years from the time the right of entry accrued. The statute of limitations in the State of Pennsylvania is twenty-one years.
, The original possession of Eckert, the husband of the widow, being confessedly in subordination to the title of the younger White during his lifetime, and after his decease to the. title of the heirs at law, down to 1809, when the right to; occupy under, the will ceased, the burden lay upon, him to establish a change in the character of the possession after this period ; and being thus in privity with the title of the rightful owner, nothing short of an open and explicit'disavowal and disclaimer of a holding under that title, and assertion of title in himself,: or in his son, the half-brother, brought home to the lessors of the plaintiff, will satisfy the law:- Short of this, he will still be regarded as holding in subserviency .to the rightful title. There are authorities maintaining the doctrine, that a party standing in the relation of Eckert to the title in question is incapable in law of imparting, by any act of his own, an adverse character to his possession ; and that, in order to deny or dispute the title, he must first surrender the possession, and place the owner in the condition he stood before the possession was taken under him. This doctrine was supposed to govern the rights of trustee and
cestui que
trust, landlord' and tenant, vendor and vendee, tenants in common, &c., and that no lapse of time would lay a foundation for a statute bar to the right of entry by reason of an adverse possession between parties standing in this relation, or any others in like privity.
The law, .however, has been settled otherwise. The trustee may disavow and disclaim his trust; the -tenant, the title of his landlord after the expiration of his lease ; the vendee, the title of his vendor after breach of the contract; and the tenant in common, the' title of his cotenant ; and drive the respective owners, and claimants to their action within .the period of the statute of limita
tions.
2
Bos. & Pul. 542;; 5 Bara. & Ald. 232 ; Cowp. 217; 2 Stark. Ev. 887 ; 7 Johns. Ch. R. 90 ; 20 Johns. R. 565 ; 4 Serg. & Rawle, 310 ; 7 Wheat. 548 ; 3 Peters, 52, C. & H.'s note, Pt. 1, notes, 307, 311, and cases ; 2 Sch. & Lefr. 633; 2 Jac. & Walk. 1, 191.
The only distinction between this class of cases and those in which no privity between the parties existed when the' possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was originally taken and held in subserviency to the -title of the real owner, a clear, positive, and continued disclaimer and disavowal-- of the title, and assertion of an adverse right, and to be broughtihome to the party, are indispensable before any foundation can be laid for the operation of the statute. Otherwise, the grossest injusticr might be practised ; for, without such notice, he' might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate c laracter of the possession as the legal result of those relations.
The statute, therefore, does not begin to operate until, the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal- acts of the tenant, which must be open, continued, and notorious, so as to preclude aÚ doubt as to the character of .the holding, or the want of knowledge on the párt-of the owner. If he then neglects to enforce his rights by action within the period fixed by the statute, the loss, as ■ in, every other case of the kind, is attributable to his own laches, and not to the law.
The main question, therefpre, here is, as to the sufficiency of the proof. It appears,'that as early as 1809 the heirs claiming here instituted actions against Eckert, as executor of Frederick White, the testator, to recover their share of the personal estafé, as next of kin to the younger White, which were resisted, on the ground-the whole estate belonged to the half-brother,'and the claim defeated. Another branch of the same family, at an earlier date (1806), instituted actions, of ejectment to recover their share of the real estate, which were resisted upon like ground, and like result. Both branches of the litigation were brought to a close in 181,0. The latter branch (not the parties here) again renewed the litigation to recover the realty in 1816, which terminated in 1818 by compromise, with a view to put an end to the controversy, but which fell through' by reason of the failure of the plaintiffs to fulfil the conditions of the settlement.
The present is the first- suit brought, by this branch of the heirs to recover the real estate, and which was commenced after the lapse of twenty-five, years from the time -their right of entry accrued, and after the lapse of the same period, also, from the termination of a litigation on behalf of themselves and their co-heirs
to recover the estate, real and personal, hi which the present defendant succeeded. During all this time; their title has been disavowed and resisted^ and the right and title of the half-brother of die younger White asserted and maintained; and the property occupied, cultivated, and improved under this claim of title and ownership ; and portions of it are
noyf
in possession of
bona fide
purchasers, upon which large and valuable, erections and improvements have , been ma'de.
We are satisfied, therefore, that the court below were right in submitting the question of adverse possession to the jury ; as there was evidence enough, even within the strictest rules of law on this. subject, arising out of the fiduciary relation in which the defendant originally stood to the title, to make this the duty of the court. And, further, looking at all the facts and circumstances disclosed at the trial, and characterizing the possession, occupation, and improvement of the property, we cannot say that any error was committed in also advising the jury that a foundation was laid upon which they might presume a grant for the- purpose of quieting the title.
Twenty years’ possession by one of two tenants in common, accompanied with an exclusive appropriation of the rents and profits, acquiesced in by the cotenant, has been held to afford the presumption of a conveyance from the party out of the possession (Cowp. 217), and the same length cf time, coupled with other circumstances, a conveyance or release of an equity of redemption to the mortgágee in possession (9 Wheat. 490, 497, 498).
The facts and circumstances in this case, in connection with the length of the possession and occupation, are much stronger in favor of allowing the presumption, than existed in several cases where the doctrine has been applied.
The charge of the court below is a most elaborate one, discuriing at large both the law and the facts upon general principles and upon authorities, as well as in reference to the particular questions involved, and the whole incorporated into the record. Borne of the comments, both upon the law and the facts, are justly liable to the criticisms made by the learned counsel on the argument. But, looking at the whole case, and the main grounds upon which it was placed before the jury, we cannot say that, the appéllate court should interfere, or that the parts obnoxious to the criticisms afford ground of review and reversal on a writ Of error.
This mode of making up the error books is* exceedingly inconvenient and embarrassing to thq'court, and is a departure from fa-, miliar and established practice.
So far as error is founded upon the bill of exceptions incorporated into the record, it lies, only to exceptions taken at the. trial to the ruling of the law by the.judge, and to the admission or rejection of evidence. (1 Bac. Abr. 779; Bull. N. P. 316.) Beyond this
we have no power to look into the bill-, on a writ of error, as it is the creature of statute, and restricted to the points stated. 13 Edw. 1, c. 31. And only so much of the evidence given on the trial as may be necessary to present the legal questions thus raised and noted should be carried into the bill of exceptions. All beyond serves only to encumber and confuse the record, and to perplex and embarrass both court and counsel.
We have no concern, on a writ of error, with questions of fact, or whether the finding of the jury accords with the weight of the evidence. The láw has provided another remedy for errors of this description, namely, a motion in the court below for a new trial, on a case máde. More attention to the practice in drawing up the bill of exceptions, and to method and order in making up the error books, would greatly relieve the court, and enable counsel to bring out more readily and distinctly for- consideration the legal questions involved. The earlier forms under the statute giving the bill of exceptions are models which it would be wise to consult and adhere to.
We think the judgment in the Circuit Court should be affirmed.