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1822. it. Cases may, indeed, be conceived in which it would produce a limited effect; as, for example, if the heir should hold against tenant in dower, or by the curtesy. But there is nothing there to bar but the tenancy in dower or curtesy. If there was, the bar would extend to it. In our case, the whole fee is against the possession by wrong, and his possession is against the whole fee. His declarations, that he claimed only a life estate, did not give him a life estate. They gave him nothing; and if they gave nothing, and secured nothing, how could they restrain to the prejudice of the legal effect of his possession? Contract would have operated both ways. But the declarations of the party could not work the effect of contract one way, and there is no reason why it should the other. Whose rights did his declaration save? It could save none, unless it took them out of the statute by postponing their right of action. Whoever had a right of action was told by the statute: sue! or you will be barred by the adversary possession after fifteen years. And unless the declarations of the possessor suspended the right of action, so as that the proprietor could not sue by reason of it, the statute reaches the case; since, it bars all rights of action subsisting during the adversary possession, and not exerted within the time limited. A possession by a man claiming an estate tail, but having in fact no title, would bar all the proprietors having a right to sue. No matter what he claims; if he claims adversely to every body during his possession of fifteen years, he excludes every body claiming title during the time, and every
body forbears to disturb him: and the statute says, 1822. he shall not afterwards be disturbed.
It is not here necessary to inquire, why William claimed only a life estate. That belongs to another branch of the subject. For the present purpose it is immaterial why he did so.
The doctrine of remitter will illustrate this head. Littleton says, (sec. 695.) "If a man be disseised, and the disseisor let the land to the disseisee by deed poll, or without deed, for term of years, by which the disseisee, entereth, this entry is a remitter to the disseisee. For in such case where the entry of a man is congeable, and a lease is made to him, albeit that he claimeth by words in paiis, that he hath estate, by force of such lease, or saith openly that he claimeth nothing in the land but by force of such lease, yet this is a remitter to him, for that such disclaimer in paiis is nothing to the purpose." So also it is laid down that a disseisor has a fee simple, and cannot have less." And no claim can possibly alter or qualify it.6
The question then recurs, are the brothers and sis1ters barred by William's exclusive possession?
It may be said they are not; because, being coparceners with him, his possession is theirs. But a co-parcener or tenant in common may be barred by the statute of limitations, if the possession of his com
o Co. Litt. 297. o.
b Co. Litt. s. 296. Co. Litt. 266. b. Mr. Butler, in his note to the last cited passage, says, "It is to be observed, that a disseisor by his disseisin acquires a tortious fee simple, notwitfittanding at the time he makes the disseisin he claims a less estate."
1822. panions be adverse, or, in other words, amount to an actual ouster. So long as there is nothing adversary, the possession of one is the possession of all: but if one parcener usurp the whole, and hold out his companion, he is a deforciant, against whom a writ of entry will lie as well as a writ of partition. Here the co-parceners of William never had possession at all. His first entry was for himself, and perfectly exclusive. There never was any possession but his. The leading case on this subject was determined in Lord Mansfield's time," and his doctrine was afterwards confirmed by Lord Kenyon.' An entry, and sole occupation of the whole, keeping the co-tenant out, in sufficient/ So, also, in a subsequent case, although it was strenuously contended at the bar that there ought to be a receipt of the rents, and an actual hindering of the co-tenant from entering,which did appear in the case, yet the Court held that "one tenant in common in possession, claiming the whole, and denying possession to the other, is evidence of an ouster."'' So, also, Lord Hardwicke says, "In the the case of a fine and non-claim by tenant in common, it will bar his companion if he does not call the person to an account for the profits: for this has always been admitted to be evidence of an ouster.'" And, again, it is said that, "although the entry of one co-tenant is the entry of both, yet if one enter
a Fisher and others v. Prosser, Cowp. 219.
6 Peaceable v. Read, 1 East, 275
e 6 Burr. 26. 3. 1 Alk. 493. 2 Atk. 32. 1 L.Raym.
d Doe v. Bird, 11 Eatt, 51.
e 2 Atk. 632.
claiming the whole, this will be an entry adverse to 1822. his companion."'
As to the minority of William's brothers and sisters, and its effect to prevent the operation of the statute, it may be observed that they all arrived at age during his life. The statute had been running against them during minority, as to ten years, and when William died it was running against them for the other five. He had then the fee in progress against them, and nearly completed. It descended to his heirs, and if his brethren and sisters did not sue before the small remnant of the time expired, they are barred by the statute. It seems to be admitted, that they could not sue after that time. Their title was extinguished, beyond all doubt; and it was in progress to be extinguished at William's death.
4. As to the title of Joseph D. it is sought to be founded on the presumption of a grant, from somebody (not said whom) to William for life, with remainder to Joseph in fee or in tail. But presumptions may be rebutted by contrary presumptions. They depend on circumstances; and these must warrant the particular presumption, or at least not be inconsistent with it.6 One of the grounds of presumption is the existence of a state of things which may most reasonably be accounted for by supposing the fact presumed. Here it must be founded on Joseph's possession, and on William's declaration, that he claim
a 14 Vin. Abr. 512. PI. 5. And in the margin. " The possession of one heir in gavelkind, claiming the whole, is adverse."
6 Phillip*, Evid. 119. 121. 2 Sound. 175. 1 Taunt. 288. 3 East, 290. 16 East. 583. 2 Barnw. <$• Aid. 791.
Vol. VII. 12
1822. ed only a life estate, and that it would descend to Joseph. The state of the case, as it appears on the bill of exceptions, is defective; but it is easy to see, that all the parties must have claimed under the will of Governor Dudley, and upon the supposition of a continuing estate tail created by that will. This explains William's declarations.
It may indeed be said, that records, and acts of parliament, and grants of the crown, have all been presumed. But this has been after the lapse of ages, with imperfect records, and the presumption supported by parol evidence." But it will be found in allthese cases, that circumstances have been always shown to support the presumption, and that after a great length of time, all things which the case shows ought to have been done, will be presumed to have been done correctly. But in this country, where all the land titles are recorded, the presumption of a grant cannot be so easily indulged, and especially where the lands lie in two different States, and the property depends on the same title. If the record were lost in one, it would be found in the other. Such a presumption would repeal all the registry acts of both States, and would promote the interests only of the negligent, or the fraudulent.4 It must be presumed, first, that the deed was made; and, secondly, that it had been lost. If the grant be supposed from Thomas, who had some estate of inheritance, it must have
a 1 Inst. 1 IS. a. 12Rep. 5. 1 Vtntr. 257. Cro. Jac. 254. Cowp. 108. 2 Strange, 1129. tAtk. 19. 2T.R. 154. 1 Fes.jun. 265. b See Jackson v. Cary, 16 Johns. Rep. 302.