Rutter v. Small

Robinson, J., delivered the opinion of the Court. The plaintiff is the only surviving child and heir-at-law of Philip Rutter, and as such is entitled to an undivided one-sixth interest in the lot of ground in controversy, unless his title thereto is barred by the adversary possession of the defendants. The lot originally belonged to his grandfather, Thomas Rutter, who in 1815 conveyed it to' Mary C. Clark for life, and after her death to James Flemming and Jude Clark during their lives and to the survivor of them. Thomas Rutter died in 1817, leaving six children, one of whom was Philip, the father of the plaintiff.

In 1829, all the children of Thomas, with the exception of Philip, conveyed their reversionary interest in the lot to Peter Stein, the deed upon its face reciting an outstanding title in Philip, and in the same year, Stein purchased the life estate of James Flemming and Jude Clark, the surviving life tenants. Being thus entitled to the life estate, and to an undivided five-sixths in the reversion, Stein entered into possession of the lot and built thereon a brick dwelling house and stable, and continued in the exclusive possession and enjoyment of the property until his death in 1859 ; and after his death, his heirs and devisees continued in the exclusive possession of the property until 1865, when they conveyed it in fee to John Small, Jr., under whom the defendants claim. Now whether Stein and the devisees under his will, were upon the determination of the life estate, in possession, merely as tenants in common, and their possession, therefore, in legal contemplation the possession of the co-tenant the plaintiff; or whether their possession and acts of ownership amounted to an ouster or disseisin of the plaintiff, are questions which we shall not now stop to consider, for the reason that the possession of Small and that ¹³⁷ of the defendants claiming under him, is in our opinion a bar to the plaintiff’s title. Stein, as we have said, died in 1859, and in 1865 his heirs and devisees conveyed the lot in question by metes and bounds, to Small in fee, with a covenant of general warranty.

Under this deed Small entered into possession, and continued in the exclusive possession and enjoyment of the property until his death in 1878. Since which time it has been in the exclusive possession and enjoyment of the defendants claiming under him, a period of more than twenty years. Now we take the law to be well settled, that where one tenant in common conveys the whole estate in fee and his grantee enters and claims and holds the exclusive possession, the conveyance and entry and possession must be deemed adverse to the title and possession of the co-tenant, and amount to a disseisin, and such possession if continued for twenty years will bar the title of such co-tenant. In Townsend and Pastors Case, 4 Leon., 52, where two co-parceners were in the use of a manor under the statute of 1 Rich., 3 , and one of them entered and made a feoffment in fee of the whole manor, all the Justices held, that this feoffment not only passed the moiety of such co-parcener, which she might lawfully part with, but also the other moiety of the other co-parcener by disseisin.

And in the later case of Reed vs. Taylor, 5 Barn. & Adol., 575, it was held, that although the general rule is, that where several persons have a right and one of them enters generally, it shall be an entry for all, for the reason, that the entry shall always be taken according to right; yet that any overt act or conveyance, by