Hanson v. Johnson

Robinson, J., delivered the opinion of the Court. This is an action of ejectment, brought by the appellants, as heirs-at-law of Catharine H. Wroth, to recover an undivided half interest in a tract of land, of which she died seized. The facts are these: Mrs. Wroth died in December, 1854, leaving a paper purporting to be a will, by which she devised the farm in controversy to her husband, Peregrine Wroth, for life, with remainder in fee to her nephew, George A. Hanson. ²⁷ The will was not executed in due form to pass real ■estate, as required by the Act of 1842, chapter 293, then in force, because the consent of her husband, in writing, was not annexed thereto, and also because it was not executed sixty days before her death. It was admitted, however,- to probate by the Orphans’ Court of Kent County, and under it her husband, on the 1st of January, 1855, entered into possession of the property, claiming title as tenant for life, and so continued in possession until the 5th of February, 1868, when he united with the remainder-man, George A. Hanson, in a sale and conveyance of the same. to the appellee, and who thereupon entered upon said property, and has continued in possession up to the institution of this suit.

Mrs. Wroth never had any children, and the appellants, as heirs-at-law, are entitled to recover, unless their right is barred by the adverse possession of the appellee and of those under whom he claims. A great deal has been said, as to what constitutes adverse possession, and it would be a wearisome task to examine at length the many cases in which this question has been considered. Prior to the Statute of 3 and 4 Will. IY, chapter 27, it was an ever-recurring and troublesome question in England, but by that Statute, passed in 1833, the doctrine of adverse possession, was virtually •abolished, and by it possession of any kind for twenty years, was made a bar, unless there was either a payment of rent or an acknowledgment of some kind by the party in possession.

The effect of the Statute, says Lord Denman, in Culley vs. Doe, dem. Taylerson, 3 Per. and Dav., 539, is to put an end to all questions and discussions whether the possession of lands be adverse or not; and if one party has been in possession for twenty years, whether adversely or not, the claimant whose original right of entry occurred above twenty years before bringing the ejectment is barred. Nepean vs. Doe, dem. Knight, 2 M. & W., 911; Doe, dem.

Pritchard vs. Jauncey, 8 C. & P., 99. ²⁸ This Statute is not, however, in force in this State, and the question of possession in this case, is one to be determined by Stat. 21 Jas. I, chap. 16, which provides that no one shall make an entry into any land but within twenty years after his right shall accrue. Now when the question arose whether one was barred by twenty years possession, it was determined by considering whether he had been out of possession under such circumstances as had reduced his interest to a right of entry; for if he had, then as that right of entry would be barred by the Statute at the end of twenty years, the possession during the intermediate time was adverse to him. And in order to determine whether he had been out of possession under such circumstances as reduced his estate to a right of entry, it was necessary to inquire in what manner the person who had been in possession during the time held.

If he held in a character inconsistent with and hostile to the -title of the claimant to the freehold, the possession was adverse. 2 Smith’s Leading Cases, 531; Nepean vs. Doe, dem. Knight, 2 M. & W., 910; Taylor, ex dem. Atkyns vs. Horde, 1 Burr., 60. “Twenty years adverse possession,” says Lord Mansfield, in Taylor vs. Horde, “is a positive title to the defendant : it is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession.” The question then of adversary possession in this case, resolves itself into this, was the possession of Doctor Wroth, under whom the appellee claims, inconsistent with and hostile to the title of the appellants as heirs-at-law ? And in regard to this question there ought not, it seems to us, to be any doubt.

During the life-time of his wife he received, it is admitted, the rents and profits of the farm in controversy. To these he was entitled by virtue of his marital rights. Upon her death, this right ceased. He was not tenant by the curtesy, because his wife never had any children.

He was not a tenant by sufferanceT ²⁹ "because an estate at sufferance is where one comes into possession by lawful title, but keeps it afterwards without any title at all. Or, as Lord Coke says, “one who originally comes in by right, hut continues by wrong.” It is a tenancy founded originally on contract and agreement, as a lessee for years, who continues in possession after the expiration of his term, and without a renewal of the lease, or a tenant at will, who holds over after the death or alienation of the lessor, or a tenant per autre vie, who remains in possession after the death of the cestui que vie. Coke on Little., 57 b. After the death of his wife, Doctor Wroth took possession, claiming a life estate under her will.

His claim of title was inconsistent with and hostile to the title of the appellants as heirs-at-law. The property was a farm, under enclosure and under cultivation; his possession was actual, visible, and, according to all the authorities, adverse to the title of the lawful owner. But then it is argued, to constitute adverse possession, one must claim the entire estate, or claim to the exclusion of all other rights. In one sense this is true.

Possession will not.be adverse if it he held under, or subservient to a higher title, nor if it he consistent with the interest or estate of the claimant, for instance, where the possession of one is the possession of the other, or where the estate of one in possession and that of the claimant form different parts of one and the same estate. The