Armstrong v. Risteau's Lessee

Tuck, J., delivered the opinion of ¡his court. The appellee sued the appellant for the recovery of part of a tract of land called “Darnallsylvania.” At one lime this whole tract belonged to Hercules Courtenay, who was the father of the appellee’s wife, and who, in the year 1807, sold three hundred and thirty-one acres thereof to Daniel Chambers, under whom the appellant claims, by a devise to his son, Harry W. Chambers, and subsequent conveyances. At the trial below, the appellee offered the will of Hercules Courtenay and other documentary evidence, from which it appears that he. devised his “dwelling plantation, consisting of parts of Good Hope,Gray’s Inspection and ‘Darnallsylvania,’ ” to his wife for life, and at her death to his son, John S. Courtenay. In 1820 the latter conveyed his interest to his mother, who, by her will, dated in 1824, and provecí in 1S26, directed the lands to be sold and the proceeds to be divided between her said son and Mrs. Risteau.

It does not appear that any sale was made under the will, nor in what manner J. S. Courtenay became sole owner of the dwelling plantation of his father; but in 1827 he devised it to Mrs. Risteau and her infant son, and to the survivor, and the heirs and assigns of such survivor. The land in controversy is not mentioned in any of these instruments offered on the part of (he appellee. It does not appear that Mrs. Risteau was the owner of the whole of her father’s estate at the time this action was commenced. The plaintiff proved various acts of ownership on the part of H. Courtenay, his widow and himself, by cutting wood, timber and rails, for thirty or forty years before the trial; and that certain fences on the north and east of the land in dispute were standing at the time of the trial, where they were forty years before, which were considered the division fences between these farms; that Chambers, the elder, had several times said that the land in dispute belonged to Mr. Courtenay, and that about the year 1832, H. W. Chambers, from whom the defendant.purchased, and the appellee had planted a stone at ²⁶⁹ the beginning of one of the lines, located by the appellee, as a dividing line between them.

There is no proof of possession by John S. Courtenay, nor of the circumstances and manner of the appellee’s taking possession of the disputed land. It is wood-land and has fences on three sides, but has none on the south; on that side it adjoins wood-land of the Courtenay estate in possession of the appellee, but this is not entirely enclosed, being open on the line between it and the lands of Ridgely’s heirs. The locus in quo, part of the Courtenay estate, and Ridgely’s land, constitute a considerable body of land, uncultivated and not enclosed, and have so remained for many years. A road passes through the land from the south to the north, leading into Armstrong’s possessions through a gate in the fence, laid down by the appellee as the dividing line between the parties.

By whom this gate was put there does not appear, but the witnesses speak of it as Armstrong’s gate. On the part of the defendant below it was proved, that Courtenay sold and conveyed to Chambers, the elder, in 1807, three hundred and thirty-one acres, which are included in the deed to the appellant, the lines of which embrace the lot in controversy, if located according to bis pretensions. He also proved that he and those under whom he claims have, from the time of Daniel Chambers, the grantee of Courtenay, resided on, occupied, used and cultivated, ail the land within the limits of the defendant’s deed, except that portion thereof which is claimed by the plaintiff. After having been in the possession of the appellee, and of those under whom he claims, adversely for more than twenty years, as he alleges, the appellant obtained possession by extending his fences according to the lines of his deed, as he claims they should be located.

Various locations were made, most of which are disputed by counter-locations, but the explanations of the surveyor show that the parties agree as to the beginning, and first and second lines of the whole tract of ‘‘Darnallsyl vania.” No question arises on paper title. The prayers of the appellee rest his right to recover on adverse possession by him ²⁷⁰ self and those under whom he claims. And two propositions have been relied on by the appellee’s counsel, which are supposed to embrace the points chiefly in controversy. These are: First.

That twenty years adverse possession will enable a plaintiff to maintain ejectment against a defendant having the paper title, who has ousted the plaintiff. Second. That the plaintiff below has proved such a possession as entitles him to recover in this action. If the first of these propositions were to be settled according to the English authorities alone, we suppose that its correctness could scarcely be questioned.

More than a century and a half ago it was decided by Lord Holt, that “if A has possession of land for more than twenty years uninterrupted, and -then B gains possession, upon which A brings ejectment, though A is plaintiff, yet his possession for twenty years will be a good title for him as well as if A had then been in possession, because possession for twenty years, by virtue of the statute of James 1, ch. 16, is like a descent at common law, which tolls the entry.” Stocker vs. Berny, 1 Lord Raymond, 741, (reported in 2 Salk., 421, as Stokes vs. Berry.) The same principle is stated in Buller's N. P., 103, and the reason assigned, “that by the statute, twenty years possession tolls the entry of the person having right, and consequently, though the very right be in the defendant, yet he cannot justify his ejecting the plaintiff.” In Taylor vs. Horde, 1 Burr., 60, Lord Mansfield, in speaking of adverse possession by a defendant in ejectment, said: ‘‘Twenty years adverse possession is a positive title in the defendant; it is not a bar to the action or remedy of the plaintiff only, but it takes away his right of possession.” And subsequently, in the case of Denn vs. Barnard, Cowper, 597, this eminent jurist applied the same doctrine where the plaintiff in ejectment was relying on a title by possession alone. See also Barwick vs. Thompson, 7 Term Rep., 492. The counsel for the appellant, however, contend that this doctrine does not prevail against a defendant holding the legal title, and they rely on 2 Archbold N. P., 318, (50 Law Lib., 308,) where it is said, “if a party against whom the twenty years have run obtain quiet possession of the land, he ²⁷¹ is then in as of his old right, and may set up his right and title as a defence to any ejectment that may be brought against him, in the same manner as if he had never been out of possession,” for which the author cites Doe vs. Reade, 8 East, 353. That case does not sustain this position.

There the plaintiff never had had any possession of the premises. She set up a claim under a former possessor, between whom and herself there was no privity. The defendant, with title, had entered into a vacant possession on the death of the last occupant. “The court all agreed, that the defendant being lawfully in possession might defend himself upon his title, though twenty years had run against him before he took possession, such possession not being the possession of the lessor of the plaintiff.” The words last quoted, but omitted by Archbold, clearly show that the defendant could not have resisted the title of the plaintiff, if she had had twenty years adverse possession before the entry of the defendant. There are other cases in England in which the decision of Lord Holt is referred to as authority on this point.

We have not been referred to any decision in Maryland in which a plaintiff has recovered on such a title, but there are several cases in which the court, in stating the general doctrines of the law of ejectment, has assumed that an adversary possession for more than twenty years is a positive title, on which a plaintiff may recover. And in the arguments of counsel in the numerous land cases tobe found in our reports, •there are frequent recognitions of the validity of such titles when relied on by plaintiffs. We mention this as pertinent to the present inquiry, because, in the absence of adjudged cases, the common opinion among eminent jurists, whose learning and experience were so often employed in ejectment causes, under the Provincial and State governments, may, we think, be appealed to as evidence of what the law was then considered to be, on a point upon which there are no cases to the contrary. Ram on Legal Judgments, 12. 1 Taunt., 448. 8 Gill, 500 .

In the case of Plummer vs. Lane, 4 H. & McH., 72 , the. ²⁷² court said, “the plaintiff in ejectment must show a grant of the land for which the action is brought, and a regular title from the grantee; or seizin of the land, and a dying seized of the person under whom the lessor derives his title, and a regu~ lar title from the person dying seized, or twenty years uninterrupted and exclusive possession of the land.” And in the case of Wood vs. Grundy, 3 H. & J., 19, the court were of opinion that the plaintiff was not entitled to recover, “there being no title deduced from the patentee, &c., and there being no possession proved sufficient to entitle the plaintiff to recover in ejectment without showing title.” See also Hutchins vs. Erickson, 1 H. & McH., 339 . Helms vs. Howard, 2 H. & McH., 88 , 89. 3 Do., 621. This view of the question is also taken by the late Judge Dorsey, in his lectures on ejectment, (page 43,) where he says, “twenty years adversary possession not only tolls the right of entry, but enables the party in possession to maintain ejectment,” and, “where the claimant does not come within the exceptions of the statute of James, it (the adverse possession) is a bar against all the world;” for which he refers to the case above cited from Lord Raymond, showing that Lord Holt’s construction of the statute was understood by him to be the law in this State. See same book, pages 56, 57.

With these opinions before us we might rest the decision of the proposition under consideration, upon the authority of those by whom the law has been thus expounded, more especially as the labor and research of counsel (and of the court) have not produced a single case in which the opposite doctrine has been maintained. 2 Gill, 201 . But, as the counsel for the appellant contend that the statute was designed for the protection of defendants, and to quiet possessions so long only as they are held; and as this is the first case in this court in which the point has been directly presented, its importance is a sufficient reason for briefly alluding to what has been ruled elsewhere, in courts of high authority. Looking to the reason on which the law of limitations is applied, we cannot give to the statute the restricted operation ²⁷³ suggested by the counsel. It is true that it does protect possessions against plaintiffs showing title, but this effect is produced, because what the law deems a perfect possession, has continued during the whole time prescribed by the statute, and thus given the title to the party who is so possessed.

A presumption arises that the rights of the real owners have been extinguished or surrendered, else they wouldnot have acquiesced so long in the possession and use of the property. The right of entry is thereby taken away, and the right to the possession attaches to the possession itself, making a complete title in the occupant. 11 Gill & Johns., 371. 1 Gill, 497 . Angel on Limitations, 396. The argument of the appellant is fully met by the following cases, in which the question was expressly before the court.

In Pennsylvania, whose statute of limitations, according to Judge Washington, (3 Wash. C. C. Rep.,478,) is substantially the same as that of 21 James, Tilghman, C. J., held, that the right of possession is acquired by twenty-one years possession, and that this right is not only sufficient to support a defence, but is a positive title, under which one may recover as plaintiff in ejectment. “This,” he said, “was the very point decided in Stokes vs. Berry, 2 Salk., 421.” So in New York, it is said to be “unquestionably the true rule, and every legal presumption, every consideration of policy requires, that such evidence of right should be taken to be conclusive.” Jackson vs. Dieffendorf, 3 Johns., 267 . In that case a party who had held possession for thirty-eight years, was turned out by a writ of possession under a judgment by default at suit of the defendants, who were plaintiffs in a former action. The questions were, whether that possession gave title to recover in ejectment, and whether the judgment by default in the former suit was a bar to the action.

Both points were ruled with the plaintiff. The same doctrine was affirmed in Jackson vs. Oltz, 8 Wend., 440 , where it was held, that a possession for more than twenty years, by the plaintiff, had ripened into a title, and that he might recover, although the ²⁷⁴ paper title was not in him. See also Day vs. Alverson, 9 Wend., 223. There are cases to the same effect in some of the other State courts, to which we deem it unnecessary to refer, concluding our views, in affirmance of the first proposition, by referring to the opinion of Mr. Justice Washington, in Holtzapple vs. Phillibaum, 4 Wash.

C. C. Rep., 367, 368, who held it to be unquestionable law, that an adverse possession in the defendant for a length of time, which will prevent a plaintiff from recovering in ejectment, will also give to the plaintiff, who has had such a possession, a right upon which he may recover; and that to defeat this right when asserted and' proved, the adverse party must show either a suit brought, or an entry made within the time which the law prescribes. To the same effect, see the opinion of Thompson, J., in Jackson vs. Porter, 1 Paine’s C. C. Rep., 457. Angel on Limitations, ch. 31. We are next to consider whether the plaintiff had had such possession of the premises in dispute, as entitled him to maintain this ejectment.

There is great diversity among the cases on the subject of adverse possession. While they agree that it must be adversary, exclusive and continuous, they differ as to the tests by which its character is to be determined. In most of the cases actual enclosure has been held to be indispensable; but in some this has not been considered important, where the nature