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tute of Limitations; and because they dated interest back to 1820,
they were thereby estopped from giving any evidence of, or
claiming title under, any improvement or possession of the land
prior to that date. 3 Yeates 591, 59, 272; 5 Serg. $ Rawle
181; 4 Serg. 4* Rawle 434. The possession of James Huff cannot
be tacked to that of his father, for it does not appear that he
claimed under him ; on the contrary, he claimed for himself, and
adversely to his brothers and sisters, for he sold the whole land
to the defendants, and not his share as one of the heirs of his
father. His possession, therefore, was the commencement of a
new right, and not sufficient to bar the plaintiffs' recovery.

Campbell, for defendants in error, argued that the defendant^
did not claim title under any warrant ; that was the plaintiffs'

492 SUPREME COURT [Sunbury

[Graffius v. Tottenham.]

own showing. After the defendants took out their warrant,
they discovered that the land had been previously appropriated
by the commonwealth, and then abandoned it. This mistake,
although it contained an allegation as to the time of the com-
mencement of interest, which was not sustained by the fact, is
not to preclude the defendants from setting up a good title, inde-
pendent of any warrant.. There was no fraud practised upon
the commonwealth by their selling us land which they had pre-
viously sold to another person. The principle of estoppel is only
applicable as between the grantor and grantee; a stranger, as the
plaintiff here is, cannot avail himself of it. 8 Watts 215; 10 Watts
224. It operates only between parties and privies. 7 Watts 405;
6 Watts 288.

The opinion of the Court was delivered by

GIBSON, C. J. Though there is no inherent privity between
trespassers, it was held, in Overfield v. Christie, (7 Serg. 4" Rawlf.
177) that a tortious possession may, by our law, be transferred
by deed or will so as to complete the bar of the Statute of Limi-
tations, by the additional adverse possession of the transferree ;
and such possession is transmissible by descent, even according
to the English law. Did James Huff then succeed, by his entry,
to the whole of his father's adverse possession, or only to an undi-
vided share of it ? He came in at the death of his mother, who
had kept the family together on the place for less than a year after
his father's death. It is not denied that, as a tenant in common
with his brothers and sisters, he succeeded to so much of his
father's possession as appertained to his own share, but it is
denied that he succeeded to any more of it ; and as it was not
shown that the brothers and sisters had entered for themselves, it
is argued that there was no actual possession of their shares in
them to displace the constructive possession of the lawful owners,
and that the statute consequently ceased to run in favour of their
undivided interests; but that, in any event, as James did not suc-
ceed to them by deed or will, he could not, on the principle of
want of privity among trespassers, tack his adverse possession to
that of his father for more than his own share.

His entry merely would certainly not be an abatement of the
shares of his brothers and sisters. That principle is distinctly
asserted in Sharrington v. Stratton, (Plowd. 306) where it is
stated that, " if the father dies seised of the land, and the youngest
son enters, the oldest son shall not have an assize of mort d'ances-
tor, or a writ of right, or any other action against him; for the law
presumes that he who is so near to him in blood is also as near to
him in love, and therefore it cannot be supposed that he entered
as an enemy, but as a friend, to preserve the inheritance in his
absence." Without more, then, the law would presume that
James had entered, not to abate the shares of his brothers and

July 1841.] OF PENNSYLVANIA. 403

[Graffius v. Tottenham.]

sisters, but to preserve them for their use ; and his entry being
consequently theirs, there would be privity enough between
them to unite every part of his possession to that of their common
ancestor. It would presume that he was in possession without
wrong to them ; and as the possession of one joint tenant was
deemed, in Ford v. Grey, (Salk. 285) to be the possession of the
other, so far as to prevent the Statute of Limitations from run-
ning against either a consequence attributed, in Carothers v.
Dunning, (3 Serg. < Ruwle 381) to such a possession between
tenants in common the possession of James would be the posses-
sion of all the rest, to give the statute entire effect in their favour.
Thus would stand his entry, unaffected by his subsequent con-
veyance to the defendants, which, however, serves not to weaken
the case. The English law, in regard to parceners, is laid down
by Lord Coke, (1 Inst, 374 a) where he says that when " the one
sister entereth into the whole, the possession being void (vacant),
and maketh a feoffment in fee, the act subsequent doth so explain
the entry precedent into the whole, that now, by construction of
law, she was only seised of the whole ; and this feoffment can be
no disseisin, nor any abatement, because they both made but one
heir to the ancestor, and one freehold and inheritance descended
to them." Now, though the children of an intestate decedent
have not, with us, an entirety of interest as in joint tenancy, or
even a unity of interest as in coparcenary, but, by the words of
our statute, a severally of interest as in tenancy in common, yet
we must respect our own usages which attach consequences to
particular acts in the completion of an inchoate title, which
would not be attached to them in the parent country. In Penn-
sylvania, the name in a warrant has been considered a very
slight indication of the ownership of it. It was a common prac-
tice to use the name of a stranger without consulting him ; and
almost any act of ownership, in the prosecution of the title, was
considered primd facie evidence of a trust for him who performed
it. "We know," said Mr Justice Yeates, in Cox v. Grant, (1
Yeates 166) "that in general the name in the location was merely
nominal, and used as a kind of scaffolding for the building up of a
formal and regular title ;" and this practice received peculiar in-
dulgence between those who stood in the relation of parent and
child. "In the case of a father making an application in the
name of his children," said Mr Justice Smith, in Fogler v. Evig,
(2 Yeates 120) "it shall be presumed to be for the use of the
father." Why shall it not equally be presumed to be for the use
of the father's heirs, when made on the foundation of his improve-
ment in the name of one of his sons? Nothing is more usual, in
such a case, than for the oldest, or some other son to enter and
consummate the improvement for the use of the family, by a war-
rant and survey in his own name ; and to convey the legal title
to a purchaser, when the land is turned into money for purposes
I. 2 R

494 SUPREME COURT [Sunbury

[Graffius v. Tottenham.]

of partition. To imply a disseisin, or an abatement from the con-
veyance of such a warrantee, would be to imply a tort, against
the truth of the case, to the persons intended to be benefited by
it ; and such an implication would, in this instance, do them a
substantial injury by means of a constructive wrong. It may be
said, that if the warrant was taken out for the use of the family,
it might have been proved. These arrangements, however, usu-
ally take place upon an indistinct understanding, and without
any specific agreement ; so that it is difficult to prove them by
the testimony of the family, even when they are competent wit-
nesses on the score of interest. It would be dangerous, therefore,
to imply an ouster of the rest of the family from a conveyance by
one of the sons in his own name ; and it is much more safe to
apply the principle of Fogler v. Evig to such a transaction,
wherever the presumption is not rebutted.

I have treated the case as if Jarnes Huff had taken out the war-
rant in his own name before the conveyance ; but it is certainly
not the weaker because it was taken out in the name of his

Another objection has been urged, which would preclude de-
fence on the Statute of Limitations altogether. This ejectment
was brought in February 1840, and the commencement of the set-
tlement is stated in the application to have been in October 1820;
so that if the beginning of the adverse possession may not be car-
ried further back, the intervening time will be too short. The dis-
ability incurred from misrepresenting the commencement of an
improvement has never been extended further than to preclude
the party from carrying back the commencement of his improve-
ment title beyond the day specified. It was said by Chief Justice
Tilghman, in Ewing v. M'Knight, (1 Serg. fy Rawle 131) " that
when one derives title under a warrant, he is estopped from car-
rying his title (under the warrant) further back than the time
fixed by the warrant for the calculation of interest." " The war-
rant-holder," it was said in Nicholls v. Laffcrty, (3 Yeates 272)
" has precluded himself from deriving his equitable improvement
beyond the day called for in the warrant." It was not said that
he should not set up a subsequently acquired title which had been
adverse to his own; and what else is a title acquired by the Sta-
tute of Limitations, which, according to Pederick v. Searle, (5 Serg.
6f Rawle 240) transfers, to the adverse occupant, the title against
which it has run. To give evidence of adverse possession is not
to carry back title by the Statute of Limitations to the beginning
of it ; for the statute is not maturing an inchoate title while it is
running its course against an adverse one. The title of the ori-
ginal owner is unaffected and untrammelled till the last moment :
and when it is vested in the adverse occupant by the completion
of the statutory bar, the transfer has relation to nothing which
preceded it : the instant of conception is the instant of birth. But

July 1841.] OF PENNSYLVANIA. 495

[Grafiius v. Tottenham.]

the Chief Justice further said in Ewing v. M' Knight: "It was
his (the applicant's) duty to tell the truth when he took out his
warrant ; but if he told a falsehood, with a view of defrauding the
proprietaries, it was but justice that he should be bound by his own
assertion on all future occasions." This is a most righteous prin-
ciple, but it is inapplicable to the case before us ; for it is one thing
to allege a possession by settlement and cultivation as the founda-
tion of an improvement title, and another to allege an adverse
possession by enclosure, or cultivation without residence, to gain
a different title by the Statute of Limitations : and it is certainly
no reason that because the applicant has defrauded the common-
wealth, he shall not be at liberty to assert a title against any one
else. The consequence of such a fraud is an estoppel, not a for-
feiture of the land. In proving an earlier adverse possession, the
defendants proved an earlier improvement along with it ; but that
this was immaterial, is shown by Coxe v. Ewing, (4 Yeates 431) in
which it was ruled that though an improvement cannot be carried
back to establish a title anterior to the time specified in the appli-
cation, yet the evidence of it may be received to show that the
survey of the other party could not legally take effect. "If it in-
cluded the bona Resettlement of third persons," said Mr Justice
Yeates, " it could not have received the sanction of the land office,
or of the country, from their uniform usages. It is true that by
going into the testimony, the defendants will receive a degree of
benefit from improvements, the equity of which they seem to have
abandoned ; but this appears inevitable, and flows as a necessary
consequence from the investigation of the validity of the survey
made for the plaintiffs." Thus all the cases go upon the ground
that a fraud in this particular is a relinquishment of the equity of
an earlier improvement ; but a title by the Statute of Limitations
is not founded on an equity : it is purely legal. The principle of
Coxe v. Ewing was reasserted in Wells v. Wright, (3 Wash. 250)
in which it was ruled that though a party can not set up title by
settlement prior to the day stated in his warrant for its commence-
ment, he may nevertheless give evidence of an earlier settlement
for the purpose of contesting a settlement right claimed on the
other side. These two cases prove the rule to be that the appli-
cant shall not go further back for the origin of his own title than
the day assigned to it in his warrant or application, but that he
may do so to affect the adverse title of another ; and in that as-
pect, the evidence of an earlier adverse possession was competent
and conclusive.

Judgment affirmed.

496 SUPREME COURT [Sunbury

Newell against Gibbs.

Upon a trial in the Common Pleas in a proceeding which originated before
two justices of the peace, by a landlord to obtain possession of demised pre-
mises, it is competent for the defendant to set up as a defence, that the title of
the landlord had expired by its own limitation, or that it had been devested dur-
ing the term, and that he had the light from the owner, whose title had accrued
pending the lease, to remain in possession.

ERROR to the Common Pleas of Bradford county.

Eli Gibbs against Albert Newell and George W. Hollenback.
This action originated in a proceeding before two justices of the
peace, under the landlord and tenant Act, to obtain possession of a
store and dwelling-house in Wyalusing.

Albert Newell and George W. Hollenback alleged that the title
to the premises was disputed and claimed by William Griffis in
virtue of a purchase by him at sheriff's sale, and that William
Griffis had the deed of the sheriff of Bradford county for the same,
which purchase at sheriff's sale was made on the 13th day of
February 1837, and the sheriff's deed is dated the 15th day of
February 1837, being since the commencement of the lease alleged
to exist between the parties by Eli Gibbs.

Upon which allegation of Newell and Hollenback, and the affi-
davit of William Griffis, execution of the judgment of the justices
was suspended, a transcript of the proceedings certified to the
Common Pleas, and the appeal entered in that court.

On the trial of the cause in the Common Pleas, after the
plaintiff had given in evidence the record sent up from the ma-
gistrates, the defendants offered to prove as follows : That John
Hollenback entered into possession of the property in dispute
in 1818, under a deed from Stephen Charlott and wife to the
said Hollenback and William F. Dininger; that Amos York
afterwards became the owner of Dininger's interest, and by col-
lusion with the tenant of Hollenback, then in possession, obtained
exclusive possession of the property in dispute. That York sub-
sequently sold to William D. Vanhorn, who entered into posses-
sion and sold to Ezekiel Griffis who entered into possession ; that
on the 10th day of September 1832, Ezekiel Griffis executed a
lease to Eli Gibbs, who entered into possession under said lease.
That the term of Eli Gibbs, under said lease, was fully complete,
and ended on the 1st day of May 1836. That on the 8th day of
May 1834, William Keeler obtained a judgment against Ezekiel

July 1841.] OF PENNSYLVANIA. 497

[Newell v. Gibbs.j

Griffis for the sum of $500, and that the property in dispute was
sold by execution upon said judgment and bid off by William
Griffis on the 13th day of January 1837, to whom the sheriff duly
executed, acknowledged, and delivered his deed, dated the 15th
day of February 1837. All the conveyances mentioned above
were offered and also proof that Eli Gibbs had never surren-
dered up the possession to Ezekiel Griffis, but held over after the
expiration of the lease, and after having received from Ezekiel
Griffis three months' notice to quit before .the expiration of the
lease, and also that he had received notice to quit from William
Griffis, the purchaser at sheriff's sale, previous to the institution
of the proceedings in this suit, to wit, immediately after the ac-
knowledgment of the sheriff's deed to William Griffis. To which
evidence, and every part thereof, the plaintiff objected. The court
sustained the objection, overruled the evidence, and, at the request
of the defendants, sealed a bill of exceptions.

The defendants further offered to prove, that at the time
Newell and Hollenback (against whom the possession is sought
to be recovered) entered into the possession of the property in
dispute, they did so under a distinct and independent title, and
not under or as the tenant of Eli Gibbs ; that at the time Gibbs
recognised and admitted the Hollenback title under which Newell
and Hollenback entered, to be good and undisputed as to the one
undivided half of said property; and that Gibbs has frequently
declared that there never was any such lease as the one set forth
in the proceedings before the magistrates. To which evidence
the plaintiff objected. The court sustained the objection, over-
ruled the evidence, and, at the request of defendant, sealed a bill
of exceptions.

Error assigned :

The court erred in rejecting the testimony offered by the plain-
tiffs as set forth in the bills of exception.

Overton and Greenough,' for plaintiffs in error. The proof of-
fered was, that Gibbs, the immediate lessor of the plaintiffs in
error, was but a tenant by sufferance of Griffis, to whom we at-
torned after the expiration of Gibbs's term. Why should Gibbs
be permitted to recover the possession, to which he has no right,
against the consent of his own lessor, when he must immediately
restore it? The Act of 21st March 1772, must be construed ac-
cording to its spirit and meaning, and will not bear a construction
which works an injury to the landlord.

Newell and Williston, for defendant in error, argued that the
Act of 21st of March 1772, was plain in its terms, not admitting
of different constructions on this point ; the only title that a ten-
ant can set up against his landlord in a proceeding under that Act
i. 63 2*

498 SUPREME COURT [Sunbury

[Newell v. Gibbs.]

is one derived by deed or descent from the lessor or by his will.
The evidence offered in this case did not come within the proviso
of the Act, but presented the plain proposition of a tenant offer-
ing to defend himself by the evidence of a paramount title to that
of his landlord, which would defeat the object of the Act, which
was to give a summary remedy to a landlord to obtain possession
of demised premises without the necessity of proving any other
title than that he is a landlord of the defendant.

The opinion of the Court was delivered by

ROGERS, J. In an action of ejectment to recover possession of
land, evidence such as was offered, is clearly admissible. For
although the defendant is not permitted to show that his lessor
never had title to the demised premises, he may on admitting that
he once had title, prove that his interest has expired. As if the
lessor being tenant, pur autre vie, bring debt against the lessee for
rent accruing since the death of the cestui que vie, the tenant may
prove (not that the lessor never had title, but admitting that he
once had,) that the interest of the lessor is at an end. Co. Lit.
47 b; 6 Co. 15, Treporfs case; (2 Saund. 418 ri). So in an eject-
ment by the landlord against the tenant, the tenant was permitted
to show that the landlord's title had expired; although it was
agreed that he could not have been permitted to prove that the
landlord never had title. Syburn v. Slade, (4 T. R. 682) ; Doe
dem. Jackson v. Rambotham, (3 Maule fy Selw. 516). Syburn v.
Slade, was the case of a sub-lessee, as here, who defeated his
lessor by proof that his title had expired. The doctrine is per-
haps to be taken with this qualification, that it must appear that
defence is made at the instance, or at least with the knowledge
of the original lessor, or owner of the demised premises. But it
is said that the lessor cannot be prevented from recovering the
possession, when he pursues the remedy provided by the Act of
the 21st of March 1772. To avoid the delay and expense in-
cident to the action of ejectment, the Act of 1772 gives a sum-
mary remedy to the lessor, when the tenant holds over the tene-
ment demised to him, after the determination of his lease, but in
other respects it neither enlarges the rights of the landlord, nor
does it control or diminish the rights of the lessee, or of others
who may be interested in preserving the possession. The lessor
is at liberty to bring ejectment, or he may pursue the remedy
given by the Act; and, if he elect the latter, after having required
the lessee to remove from the premises, he may complain to two
justices of the peace, who are required to summon twelve free-
holders in the manner pointed out in the Act, and if on hearing
the freeholders find that he had been possessed of the lands or
tenements in question, that he demised the same for a term of
years or at will to the person in possession, or some other person
under whom he claims, or came into possession at a certain yearly


[Newell v. Gibbs.]

rent, that the term is fully ended, that demand had been made of
the lessee, or other person in possession, to leave the premises
three months before the application, it is the duty of the justices
to give judgment (of which record is to be made) that he recover
the premises. The 13th section provides, that if the tenant shall
allege that the title to the land* and tenements in question, is dis-
puted and claimed by some other persons whom he shall name, in
virtue of a right or title accrued or happening since the com-
mencement of the lease, by descent, deed, or from or under the
last will of the lessor, and if thereupon the person so claiming,
&c., shall on oath, &c., declare that he verily believes that he is
entitled to the premises in dispute, &c., and shall become bound,
&c., then, and in such cases, and not otherwise, the justices shall
forbear to give judgment. The general intention of the legisla-
ture seems to have been to limit the jurisdiction of the justices
and freeholders, to the simple inquiries above stated : these they
were supposed fully competent to decide ; but when questions of
a more serious and complicated nature may arise, involving the
investigation of the rights of others, they are reserved for decision
by the common law tribunal; in other words, the intention is
obvious, to reserve to the Court of Common Pleas, all the juris-
diction that has not been specially delegated to the Justices' and
Freeholders' Court. This construction harmonizes the whole
system. The objection is, that this case does not come within the
proviso : but this depends on how the Act is construed ; whether
we give it a literal or liberal construction. The plaintiff contends
that the title of the person named, must not only accrue since the
commencement of the lease, but that it is indispensable that it
accrue by descent or deed from him, or under his last will ; that
the lessor spoken of in the Act, is the immediate lessor under
whom he obtained the possession; that to entitle the tenant to
the benefit of the proviso, by which the proceedings are suspended,
he must allege and prove that the title is in the person named, by
reason of a descent cast, by deed, or from or under the last will of
him from whom he rented the premises. Qui hceret in literd hceret
in cortice, is a maxim which may be applied here. The tenant, it
is true, does not offer to prove a literal compliance with the direc-
tions of the Act, but he offers to show what is an equivalent, that
the title of Gibbs had expired by lapse of time, and that since
the commencement of his lease, the title had vested in a certain
William Griffis, by virtue of a purchase at a sheriff's sale, of the
interest of Ezekiel Griffis, who was the lessor of Gibbs, the plain-
tiff The tenant offers to show that Gibbs has no right to the
possession, because his lease from Griffis has expired, and further
that Gibbs's lessor has consented that they, the defendants, should
hold the land as his tenants. Disguise it as you may, it amounts
to an attempt on the part of Gibbs, to regain the possession of
the premises on an expired lease, against the consent of the owner,

500 SUPREME COURT [Sunbury

[Newell v. Gibbs.J

or in other words, to turn his own landlord out of possession ; for

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