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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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Possession is presumed to follow the recording of the deed, and the
contrary must be shown.] It has not been supposed that a pur-
chaser who has a regular chain of title with all the previous deeds,
is bound to go to the property and inquire into the ownership of
the person in possession. [KENNEDY, J. I think that Krider v.
Lafferty, 1 Whart. 303, settles that point against you.]

3. Parol evidence of an acknowledgment of title in another is
not sufficient to prevent the operation of the statute of limitations.
How could a purchaser from Ley become acquainted with these
alleged conversations. The statute of frauds and the statute of
limitations would both become nugatory, if euch evidence were
allowed any weight. The conversation was not evidence of any
fact ; at best, it was a mere expression of opinion. The evidence
shows clearly that the defendants were in actual and unquestioned
possession, at least as early as 1789, and their possession continued
until 1825, if not later, and the only doubt thrown upon the con-
tinuity of possession arises from the testimony of a single witness,
who is not entitled to credit. Upon the subject of the statute
of limitations, and the effect of parol declarations to counteract
it, the counsel referred to the 2d section of the act of 1789 and
cited the following cases. Thompson v. Smith, 7 S. & R.
209 ; Pedrick v. Searle, 5 Id. 240 ; Gregory v. Setter, 1 Dall,
193 ; Graham v. Moore, 4 S. & R. 467 ; McKinney v. Leacock,
1 Id. 26 ; Adams on Ejectment, by Tillinghast, p. 57, in note,



1838.] OF PENNSYLVANIA. 275

[Sailor r. Hertzog.]

where the cases are collected ; Jackson v. Shearman, 6 Johns. 21 ;
Jackson v. Davies, 5 Cowen 133 ; Jackson v. Kisselback, 10
Johns. 338; Jackson v. Carey, 16 Id. 305; Rundle v. Etwein,
6 Binn. 136.

4. There was not in this case such a lapse of time after the ap-
plication for the benefit of the insolvent laws as to authorize the
presumption of the payment of Sailor's debts. Only fourteen years
had elapsed from the date of the application to the bringing of the
ejectment. It appeared in evidence that Sailor was indebted by
specialties *and even judgments. In Foulk v. Brown, 2 r*97
Watts 214, Judge Sergeant lays down the law, that " after *-
a lapse of twenty years, bonds and other specialties, merchants'
accounts, legacies, mortgages, judgments, and indeed all evidences
of debt excepted out of the statute, are presumed to be paid." It
does not appear from the report of the case of Power v. Hollman, 2
Watts 218, what length of time elapsed between the discharge
under the insolvent law and the commencement of the suit ; nor
does it appear that there were any specialty debts or judgments.
In Boltz v. Bullman, 1 Yeates 584, it was held, that eighteen
years and a half were not sufficient to create the presumption of
payment of a bond.

Mr. H. Subbell and Mr. Rawle, for the defendants (plaintiff?)
were requested by the court to confine themselves to the ninth and
tenth reasons for a new trial.

1. The evidence shows that Sailor was in possession in 1792, at
least by the receipt of rent. The occupancy alleged on the other
side may have been quite consistent with this, by not being adverse
but in the character of tenancy. It is necessary to create the bar
of the statute, that the possession should be distinct and hostile.
The character of the possession whether hostile or otherwise, may
certainly be shown by parol. Indeed, the fact of actual posses-
sion can be proved only by parol. The same kind of evidence
then is surely admissible, and important to negative the allegation
of hostility, by showing an admission of title.

The following cases were cited in reference to this point. Jack-
son v. Bard, 4 Johns. 230 ; Jackson v. Sharp, 9 Id. 167 ; Wick-
ham v. Conklin, 8 Id. 227 ; Jackson v. Croy, 12 Id. 427 ; Jackson
v. Parker, 1 Johns. Cas. 124 ; Jackson v. Thomas, 16 Johns. 293 ;
Hawk v. Senseman, 6 S. & R. 21 ; Overfield v. Christie, 7 Id.
177 ; Wallace v. Duffield, 2 Id. 527 ; Rung v. Shoneberger, 2
Watts 23; Potts v. Gilbert, 3 Wash. C. C. Rep. 475; Davis v.
Pierce, 1 Term Rep. 53 ; Doe v. Pettit, 5 Barn. & Aid. 223 ; s.
C. 7 Eng. Com. Law Rep. 75 ; Galloway's Lessee v. Ogle, 2
Binn. 471; Jackson v. Cuerder, 2 Johns. Cas. 353; Jackson v.
Dobbin, 3 Johns. Rep. 223 ; Jackson v. Scissam 3 Id. 499 ; Jackson

4 WHARTON 18



276 SUPREME COURT [Dec. Term,

[Sailor v. Hertzog.]

v. Davis, 5 Cowen 129 ; Jackson v. Shearman, 6 Johns. 21 :
Graham v. Moon, 4 S. & R. 467.

2. The second ground is not entitled to favor, since it is inde-
pendent of any claim on the part of the defendants, either to title
or possession. Supposing, which is quite improbable, that the
Jacob Sailor who took the benefit of the insolvent law in 1817, was
the plaintiff in this case, we contend that the jury were authorized
to presume payment of all debts and a reassignment of the property
after the lapse of nineteen years, which had intervened from the
date of the discharge to the time of the trial. The debts were
*277~l P r i nc ip a % *bj simple contract. The dictum of Judge Hus-
" ton. in Feather's Appeal, 1 P. & W. 322, that the
statute of limitations does not run against debts due by an insol-
vent, was declared not to be law in Shoenburger v. Adams, 4
Watts 430, and in Gest v. Hieskell, 5 Rawle 134, and was finally
disavowed in Sletor v. Oram, 1 Whart. 106. It is settled that
after twenty years the jury are bound to presume payment of bonds
and other debts not within the statute ; but within twenty years it
is a presumption of fact dependent on circumstances, of which time
is a material one. Cope v. Humphreys, 14 S. & R. 15 ;
Diemer v. Sechrist, 1 P. & W. 420; Nickle v. McFarlane, 3
Watts 167 ; Foulk v. Brown, 2 Id. 209. Here there were
many circumstances besides lapse of time. A material fact was,
that the trustees never qualified, although there was a large real
estate which might have been made available for creditors if there
had been any.

Mr. J. R. Ingersoll, in reply.

The doctrine contended for on the other side, respecting the
acknowledgment of a claim, is a very dangerous one. Even in
respect to debts it has been very much narrowed ; and in England
by a late statute an acknowledgment of indebtedness must be in
writing. Parol evidence is not admissible to affect 'title, directly
or indirectly, though possession may be attacked by it. In the
case of Levy v. The Bank of the United States, 1 Binn. 27, it was
held, that an admission by the plaintiff, did not bind him in the
case of personal property ; and certainly such acknowledgments
ought not to have greater force in respect to real estate. If Ley
had done any act, such as paying rent or accepting a conveyance,
he would certainly be estopped. Doe dem. Buller v. Mills, 2 Ad.
& Ellis 17 ; S. c. Eng. Com. Law Rep. 16. The case of
Jones v. Porter, 3 P. & W. 135, does not go to the extent sup-
posed. Judge Huston there says, that the protection of the statute
is not lost by declarations, that the party will yield if the adverse
title proves best. In the case cited from Johnson's Reports, on
the other side, the declarations seem to have related to possession



1838.] OF PENNSYLVANIA. 277

[Sailor v. Hertzog.]

merely. The opinion in Jackson v. Burd, 4 Johns. 234, wag
entirely obiter. The alleged declarations in this case were pro-
duced by the contrivance of the plaintiff, and under circumstances
which would induce equity to give relief against them, supposing
that they were otherwise binding. They were made also, if at all
in view of a compromise ; and, therefore, could not be admitted to
affect the party's rights afterwards.

The court having directed a re-argument on the questions arising
upon the 9th and 10th reasons, the case was again argued at this
term by the same counsel.

For the defendant were cited the following cases in addition to
those formerly cited : Hall v. Vandegrift, 3 Binn. 374 ; Law v.
*Merrill, 6 Wend. 277 ; Jackson v. Spear, 7 Id. 401 ; .-^g
Jackson v. De Waltz, 7 Johns. Rep. 157 ; Jackson v.
Walker, 7 Cowen 637 ; Brant v. Cuyler, 10 Johns. 358 ; Morse v.
Hitchcock, 4 Wend. 492 ; Jackson v. Cole, 4 Cowen 587 ; Jack-
son v. Dennis, 4 Wend. 558 ; Jackson v. Harder, 4 Johns. 202 ;
12 Wend. 105; Daniel u. Ellis, 1 Marsh. Kentucky Rep. 60.

For the plaintiff, were cited in addition, Brandt v. Ogden, 1
Johns. Rep. 158 ; Jackson v. Waters, 12 Johns. 358 ; Smith v.
Bayley, 9 Id. 180 ; Jackson y. Parker, 1 Johns. Cas. 124 ; McMas-
ters v. Bell, 2 P. & W. 180 ; Read v. Dickey, 1 Watts 152 ;
Walker v. Walker, 16 S. & R. 379 ; Miller v. Kean, 5 Watts 348 ;
Comegys v. Carlin, 3 Id. 280 ; Mercer v. Watson, 1 Id. 330 ;
Royer v. Benlow, 10 S. & R. 303 ; Davis v. Pearce 2 Term Rep.
63 ; Jackson v. Eyre, 14 Johns. 224 ; Wells v. Prince, 4 Mass.
Rep. 67.

The opinion of the court was delivered by

KENNEDY, J. On the trial of this cause at Nisi Prius, several
questions of law were raised and discussed by the counsel con-
cerned ; upon which it became necessary for the learned judge,
before whom the cause was tried, to instruct the jury. His instruc-
tion to the jury on these questions has been excepted to by the coun-
sel for the defendants, and, among other matters, assigned by them
as reasons for a new trial. After a very full and elaborate discus-
sion of them by the counsel on both sides, and a deliberate consider-
ation of them on our part, we are well satisfied that they were
correctly answered by the judge in his charge to the jury. The
principles connected with and governing the solution of them, are
stated with great clearness and precision by him, and applied with
a degree of force and aptness that would seem to render the more
clear and perfect demonstration of them unnecessary, if not vain :



278 SUPREME COURT [Dec. Term,

[Sailor v. Hertzog.J

it will not therefore be attempted. But we think the verdict is
decidedly against the weight of the evidence given on the trial of the
cause, if not wholly and entirely so, and more especially as regards
the nature of the possession and the duration of time, which the
defendants and those under whom they claimed the right of pro-
perty, as well as that of the possession, to the lot of ground in ques-
tion, actually had and held it. It appears to us clear, from the
evidence on the part of the defendants, that their possession, which
is admitted now to exist, and that of those from whom they derive
their right to it, cannot be considered other than adverse to the
plaintiff's claim, from its commencement ; and that it has so con-
tinued down to the present time, even admitting the evidence given
on the part of the plaintiff, and all that can be fairly drawn from it,
*27n * to ^ e true< Also, tnat tne evidence on the part of the
-" defendants shows beyond all reasonable doubt, that their
continuous possession had endured much more than twenty-one
years before this action was commenced ; and was therefore pro-
tected against the plaintiff's claim by the statute of limitations.
Both parties derive their respective claims to the lot by deeds of con-
veyance from George Weiss. The plaintiff's appears to be the first
in point of time, both as to its execution and being put on record, and
therefore was, without doubt, at one time the only valid one of the
two. Whether, however, the plaintiff or Jacob Sailor, his grantor,
and the immediate grantee of George Weiss, ever took the actual pos-
session of the lot as all, is very questionable from the evidence. It
does not appear to have ever been assessed with taxes at any time
in the name of Jacob Sailor, either as the owner or occupant of it.
He obtained the title to it by a deed of conveyance from George
Weiss on the 5th of July 1788. Had he taken the actual pos-
session of it, either by himself or his tenants immediately, or
shortly after, and kept it even for the space of two or three years,
it might naturally be supposed that the assessor would have come
to a knowledge of it, and of course, as it was his duty, would have
made return of it in Sailor's name accordingly ; nothing, howev-r.
of the kind appears. But it does appear that Jacob Peters' son &_.d
one of the executors of John Peters, to whom, with the other execu-
tors, the lot was devised to be sold, his father, the testator having
purchased and obtained a deed of conveyance for it, on the 16th of
February 1780, from Jacob Ettwein, who, on the 2d of that same
month, purchased and obtained a deed of conveyance for it from
William Henderson, who, on the 19th of the preceding month,
purchased and obtained a deed of conveyance for it from George
Weiss, who had, on the 5th of July .preceding, as has been men-
tioned, conveyed it to Jacob Sailor, was assessed as the owner of a
lot answering the location of the lot in question in the year 1791,
the second year after his father purchased it, and in the same year,



1838.] OF PENNSYLVANIA. 279

[Sailor . Hertz og.]

as it would seem, of his death ; and so it appears to have been
assessed every succeeding year till 1798, when it was assessed as
the estate of George Peters, another son and executor of John
Peters, in whose name it continued to be assessed till 1805, when
it was assessed in the names of Ley and Hupfeldt, who, as it may
be inferred very fairly from the evidence, came into the possession
as the tenants of Joseph Peters, who purchased of the executors of
John Peters in April 1800 ; and it continued to be assessed to Ley
and Hupfeldt till 1808, when, in addition to their names, Joseph
Peters is superadded as the owner of the estate ; and thus it con-
tinued till 1811, when the name of Hupfeldt is dropped, and the
assessment made in the name of Daniel Ley alone, who, previously
to that, in November 1809, had purchased the lot of Joseph Peters ;
so that from 1791, it was regularly assessed, as it would seem by
the evidence, to some one or other of the Peters family, and those
to whom *it was transferred by them, down to the present r*oQA
time. This taken in connection with the verbal testimony -
given by the witnesses on behalf of the defendants, seem to estab-
lish very clearly that actual possession of the lot was taken by the
Peters family, at least, as early as 1790 or 1791. First, the testi-
mony of Conrad Wile says, that he removed opposite to the lot in
1793 ; that the Peters family occupied it at that time ; he thinks
they occupied the bake-house as such, though he does not recollect
it distinctly ; Jacob Peters died, he thinks, of the fever in 1793 ;
that after his death, a man of the name of Stammers occupied it ;
he was a baker and followed that business ; but he cannot tell how
long he continued to occupy it, nor under whom he held it, though
they were intimate acquaintances. But as several of the witnesses
think that the Peters family had occupied shortly before, and as
they lived, according to the evidence without doubt or contradiction,
in a house on the adjoining lot, there being then no dwelling-house
on it, the natural, if not the necessary presumption is, that Stam-
mers took possession under the Peters family. For it is not to be
believed, unless there were direct and positive proof of the fact,
that they, considering themselves to be, as we are bound to suppose
from the evidence, the undisputed owners of the lot, and having it
close by their residence, constantly under their eye, would have
permitted Stammers or any other to have taken possession of and
to have occupied it, without it were taken under them. Nor,
indeed, is it probable, seeing that they were then considered and
reputed by every one in the neighborhood to be owners of it, that
Stammers or any one, excepting Jacob Sailor, would have attempted
to take possession without their consent. John Greiner also testi-
fied, that John Peters was in possession of it before his death, which
must have been, at least, as early as 1791, and that he was suc-
ceeded by his son Jacob, who died of the fever in 1793. He thinks



280 SUPREME COURT \I)ec. Term,

[Sailor v. Hertzog.]

that it was untenanted anterior to and after the death of Jacob
Peters, before the occupancy of Ley commenced. According to the
testimony of Edward Penington, Daniel Ley went into the posses-
sion of the sugar-house on the lot in dispute, either in the year
1800 or 1801. And John Maybin, a son-in-law of John Peters,
and also one of his executors, though he could not testify to the
year that the Peters first took possession of the lot, yet he knew
they were in possession of it in 1793 ; that they kept possession
of it until the executors of John Peters, of whom he was one, sold
it at a public sale to Joseph Peters ; which according to the deed of
conveyance made by them, was in October 1804. Joseph Peters,
as he testifies, was the youngest son of John Peters ; that he took
the possession and held it by himself or his tenant, as he believes,
until he sold it to Ley and Hupfeldt. He believes Ley and Hup-
feldt were the first who made a sugar-house of it. He also testifies
that he understood that George Peters rented it first to Ley. None
of these witnesses, though they resided in the immediate neighbor-
*2ft1 1 h 0< ^' *f tne ^^' ever heard of Jacob Sailor being the
J owner of or of his having any claim to it, until about the
time this action was brought. They all understood and believed
that the Peters were the owners of it ; which goes strongly to sup-
port and confirm the fact, that no possession was ever had of it
from the time John Peters obtained his deed of conveyance for it,
down to the commencement of this action, that was not taken
and held under the Peters claim. Catharine Craigen or Hanson,
a sister of Jacob Sailor, and witness produced on the part of the
plain tiff, is the only person who has even given a single spark of
evidence to the contrary. She testifies that she knew her husband
had received rent for Jacob Sailor, meaning for the lot in question,
and sent it to him in the country. The last time he received rent,
according to her recollection, was in 1797 : and he stopped receiv-
ing it at that time on account of the sickness. She knows it was
rent for this property, because her husband always received rent
and sent it to Jacob Sailor in the country, who lived then beyond the
blue mountain. After the sickness she went with her husband to
the sugar-house, when they found strangers in the possession of it.
Then her husband looked after the rent no longer, but sent word to
Jacob Sailor to come down himself ; that he accordingly came, and
found strangers in the possession of it. But she does not know the
name of any tenant of whom rent was received by her husband ;
nor does it appear that she ever saw any paid, at least she has not
said so. She says, the first she knew of the property, was after her
brother bought it, before the sickness of 1793. Then there was a
bake-house on it, but she cannot tell whether it was frame or brick,
or how many stories it was high, though she was in it several times ;
and her brother wanted her and her husband to live in it. That



1838.] OF PENNSYLVANIA. 281

[Sailor v, Hertzog.]

the tenants left it in 1797, on account of the sickness, and did
not return, though she can tell nothing about them, nor who they
were, not even the name of any one ; nor does she state how she
knew, whoever they might be, that they were tenants to her
brother. Her testimony is very questionable, if not wholly incred-
ible ; for in 1825, she gave it in the form of a deposition, without
testifying to any of the matters as mentioned above, and testified
to by her on trial at Nisi Prius. Instead of saying that the first
she knew of the property, was after her brother Jacob purchased,
as she did on the trial at Nisi Prius, she in her deposition says, that
as late as 1815, she then thought the sugar-house belonged to her
deceased sister, to whom her brother Jacob was executor, and that
her sister had left it to herself, her brother Jacob, and a surviving
sister. She also states in her deposition, that at the same time she
thought so, she went in company with her son-in-law, Isaac Young,
to Daniel Ley, who was in the possession of the sugar-house, to see
if it belonged to him or not. That she asked Ley, if it belonged
to her brother, or no ; Mr. Ley said he had bought it, but she
could not recollect of whom he said he bought it : that he showed
her the deed *and other papers ; and said that they could I-*OQO
not give him a good title, and he would not pay them any '
more money. In her deposition she gives her narrative plainly in
such a way, as to make it be believed, that she, not Isaac Young,
called upon Ley, and that she alone had all the conversation with
Ley relative to the sugar-house, that took place upon that occasion :
in short, that Isaac Young did not even speak a single word to Ley
then about it ; but merely accompanied her to Ley's that she might
see and talk to Ley in regard to it. According, however, to the
relation given by her on the trial at Nisi Prius, she expressly and
directly contradicts all this, and says that she went thither because
Isaac Young took her ; that he went thither, after he got a power
from Jacob Sailor, her brother, to look after the property ; that she
did not go thither to see if she had any .claim to the property,
because she knew she had none ; that she went to see a friend on the
G-ermantown road, while Young looked at the papers, which Ley
showed him ; that he showed him, not her, all his papers, bonds
and every thing ; and she does not testify that she spoke as much
as one single word to Ley about the sugar-house or the property,
but that Young said all to Ley that was spoken to him in relation
to it. In her testimony to the arbitrators on the llth of October
1827, instead of going to see a friend while Young was looking at
the papers shown to him by Ley, she said she went out and held
the horse that they used in coming thither, as it was wild. Again.
in her deposition she says nothing about either her brother having
received rent for the sugar- house at any time, or her husband for
him. The first time she testified to rent having been received, was



SUPREME COURT [Dec. Term,

[Sailor v. Hertzog.]

on the trial of the cause before the arbitrators, when she said, " my
husband had the care of it, and to the best of my knowledge got
some money for rew,"without stating from whom, " and sent it to
my brother ; and then the sickness came on." Before the arbitra-
tors, she also said, she went to Ley's with Young, who went thither
to get rent, that Young claimed rent for the sugar-house ; yet
Young does not testify that he made any such claim. Thus it is
seen that the several narratives given by her at different times of
the interview with Ley, and relative to the property in question
generally, form a tissue of contradiction, which cannot positively
be reconciled. The fact then of Jacob Sailor's having received rent,
either directly or indirectly, for or on account of the sugar-house,
standing entirely upon the evidence of Catharine Craigin or Hanson,
for its support, cannot with any propriety be said to have been
proved. Besides the facts established by the written evidence,
which is not, and, as I apprehend, cannot be contradicted or im-
pugned, to wit, that the property was returned by the assessor as
the estate of John Peters, as early as the year 1791, and continued
to be assessed with taxes in the names of the Peters family, as the
estate of one or other of them, until they passed it away to strangers,
together with the acts of ownership exercised by them over it in
*983~l * ma king sales thereof, both public and private, go strongly
' to disprove all that Mrs. Hanson has said in regard to the
rent being received by her husband for her brother, or by her
brother himself; and to prove at the same time, that the Peters
family asserted their claim to the sugar-house, and the lot upon
which it stood, and as it were kept it up by a continual claim, by
means whereof, as also by their having occupied the same either
themselves personally or by their tenants, they acquired the reputa-
tion of being notoriously the owners thereof, while Jacob Sailor was
wholly unknown as ever having a claim thereto ; but this could not
well have been the case, had he ever been in the actual possession
of the property, either. himself in person, or by his tenants, as his
sister has testified.

This written evidence just noticed, while it goes to impugn the
testimony of Mrs. Hanson, and taken with itself, to render it



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