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debtor. The court below, therefore, erred in their direction to the
jury on this point.

Judgment reversed, and a venire facias de novo awarded.



258 SUPREME COURT [Pittsburgh



Craddock against Armor.

The marginal annexation of the words "security for the fulfilment of the
above" to the name of a joint promissor in a note, will not change his character
of promissor to that of a guarantor.

ERROR to the common pleas of Allegheny county.
John B. Hughes for the use of George Armor against Richard
Pope and Robert Craddock. This action originated before a jus-
tice of the peace. The summons was served upon Craddock alone.
Pope not found. It was founded upon the following instrument:

"Pittsburgh, Sep. 15, 1838.

" Due John B. Hughes, or bearer, the sum of forty dollars, to be
taken in meat at my stall when called for."

RICHARD POPE.

" Security for the R. CRADDOCK."
fulfilment of the above."

The declaration was on a joint note averring a demand of meat
and money. The only material part of the defence was, " that the
plaintiff could not recover without express proof of a proceeding
against Pope in the first instance, and of his insolvency, Craddock
being but a guarantor."

The court below (Patton, president) answered this point in the
negative.

Miller, for plaintiff in error.
Knox, for defendant in error.

PER CTJRIAM. The assignment of error is disposed of by one
circumstance apparent on the face of the bill Craddock was not a
guarantor, but an immediate party. His name was signed at the
foot, beneath that of Pope, the principal debtor, but, to exclude mis-
conception of his character in the transaction, with the marginal
annexation of the words, " security for the fulfilment of the above,"
which are not inconsistent with a direct engagement. They serve
to note that he had signed, not as a guarantor, but as a surety.
They are not technical words in a contract of guaranty; and the
juxta-position of the signatures, as well as the absence of apt words
to indicate a contingent responsibility, shows that the parties in-
tended to be jointly bound.

Judgment affirmed.



Sept. 1840.] OF PENNSYLVANIA. 259



Lytle against Lytle.

Although a fee simple may be created by deed, without words of inheritance,
if, by reference, another instrument be incorporated in it, which does contain
them, yet nothing short of this, however clear the intent to do so may be, will
enlarge a life estate to a fee; not even if the reference be to a will creating a fee
without words of inheritance.

ERROR to the district court of Allegheny county.

David Lytle against John Lytle and other heirs of Abraham
Lytle, deceased. This was an action of partition.

Robert Lytle the father of the plaintiff and of Abraham Lytle
the defendant's ancestor, died seised of the land in dispute, con-
taining 415 acres, having first made his will, by which he devised
it as follows:

"And the remainder of my real and personal property I will to
be equally divided betwixt my children."

The testator left ten children. In 1813 there was an amicable
partition of the estate, and seven-tenths were set off to Abraham
the father of the defendants, he then claiming to have purchased
five shares, and to be the guardian of the younger brother; one of
these shares being David's, the plaintiff who was present at the
partition. Abraham's right to this share was founded upon the fol-
lowing instrument:

"This article, made the seventeenth day of January, one thou-
sand, eight hundred and twelve, between Abraham Lytle of the
one part, and David Lytle of the other, both of Allegheny county,
witnesseth, that the said David Lytle, for the sum of one hundred
and fifty dollars to him in hand, doth sign unto the said Abraham
Lytle, all his part of the estate left to him by his father's last
will and testament, both personal and real property, and further,
said David Lytle doth by this relinquish his claim forever, and sign
it all to Abraham Lytle. Given under my hand and seal.

" DAVID LYTLE, [L. s.]"

Abraham Lytle having died before the institution of this suit,
the question arose whether the foregoing instrument vested in him
a fee simple, or but a life estate in the premises.

Grier, president, was of opinion that Abraham Lytle derived
from the instrument but a life estate, and therefore directed a ver-
dict and judgment for the plaintiff.

MPCandless, for plaintiff in error, admitting that if the ques-
tion depended alone upon the construction of the deed itself, the
judgment of the court below would be right, yet contended that
the reference "which it made to the will of his father, " all his estate
left to him by his father's last will and testament, both personal and



260 SUPREME COURT [Pittsburgh

[Lytle v. Lytlc.]

real property," enlarged the estate granted commensurate with the
terms of the will, which clearly created an estate in fee simple.
The intention of the parties to create an estate in fee cannot be
doubted; and in seeking for that intention the deed is to be construed
more strongly against the grantor. 1 Shep. Touch. 86. 88; Co. Lit. 9;
2 Pres. on Estates 2. 5; Com. Dig. Estates, Jl. 2. Jacob's Law
Die. "Assign;" 2 Black. Com. 102; 7 Petersdorff <ftb. 693; Web-
ster's Die. vol. ii. "Relinquish"

Shaler, for defendant in error, cited 3 Cruise 440; 1 Dull. 132; 1
Co. Lit. 87, note 2; 3 Johns. 188; 3 Cruise 145.

The opinion of the court was delivered by

ROGERS, J. Littleton, in the text, says, that the word heirs only
can make an estate of inheritance, in all feoffments and grants:
Lord Coke, in his commentary on this, page 9, says, " But out of
this rule of our author, the law doth make divers exceptions, (ex-
ceptio probat regulam;} for sometimes by a feoffment, a fee sim-
ple shall pass, without these words, (his heirs.) For example, first,
if the father enfeoffe the sonne, to have, and to hold, to him and his
heirs, and the sonne enfeoffe th the father, as fully as the father
enfeofieth him, by this the father has a fee simple, quia verba re-
lata hoc maxima operanturper referentiam ut inessevidentur"
Sfc. Shep. T. 101, and Preston on Estates 2, are to the same
point. As if one recite, that B hath enfeoffed him of white-acre,
to have and to hold, to him and his heirs, and he saith further, that
as fully as B hath given white-acre to him, and his heirs, he doth
grant the same to C. This is held a fee simple, on the same prin-
ciple. And if one grant two acres to A and B, to have, and to
hold, the one to A and his heirs, and the other to B in forma pre-
dict a; by this (grant), B hath a fee simple in this other case, for an
estate in fee simple, fee tail, or for life, may be made by such words
of reference. It is said, that this case is embraced by the principles
above stated. The facts are these: by an article of agreement,
David Lytle assigns to his brother Abraham Lytle, all his part of
the estate left to him by his father's last will and testament, both
personal and real property, and further David relinquishes his
claim for ever. It is plain that, by agreement, nothing but a life
estate passes, unless it is enlarged to a fee simple by the reference
to the will. The words of the will are, so far as they are material
to the question, " and the remainder of my real and personal estate,
I will, be equally divided between my children." The will leaves
the parties just where they were. It shows it was the intention of
the parties, to convey a fee, a matter which is as plain on the face
of the agreement as it can be made by reference to the will. If the
will had contained a clause giving the property to him and his heirs,
it would have come within the reasons of the cases which have
been cited. A fee simple is conveyed, because bynhe reference,
the other instrument is incorporated and made part of the convey-



Sept. 1840.] OF PENNSYLVANIA. 261

[Lytlc v. Lytle.]

ance, and if that should contain the essential word (heirs), it is ad-
judged good, as a conveyance of the fee. The distinction between
a will and a deed, is firmly settled, and we must not yield to excep-
tions, unless they plainly appear to be within the cases already ruled.

This point does not seem to have occurred to the counsel on the
argument in the district court. It was argued there on other
grounds, which have been properly abandoned.

Judgment affirmed.



Farmers and Mechanics' Bank against Wilson.

An acknowledgment, such as will avoid the operation of the statute limiting
the time within which an action may be brought for the recovery of lands, must
be made to the owner or his agent known as such; must admit that the title of
the claimant is good, and must be accompanied by a distinct agreement to leave
the land or to continue as tenant.

ERROR to the common pleas of Beaver county.

The Farmers and Mechanics' Bank against George Wilson.

This was an action of ejectment for 241 acres of land, in which
the only question which arose in this court, was as to the effect of
certain declarations of the defendant in avoiding the operation of
the act of limitations upon which his defence rested. The defend-
ant had been in the adverse possession of the land for twenty-one
years and upwards. The plaintiff called Enoch Marvin as witness,
who said: "That he went to the land in dispute in 1817, to serve a
writ of ejectment on the defendant, who said, < that if he would
pass him he would give no trouble;' that in consequence of this he
did not serve an ejectment on him." The court below (Bredin,
president) was of opinion that this was not such an acknowledg-
ment of title as would avoid the operation of the statute. Verdict
and judgment for the defendant.

Shannon, for plaintiff in error, cited 7 Watts 581; Jldams on
Ejectment 32; 1 Payne 457; 1 Wend. 149; 1 Law Lib. 82.
j for defendant in error, stopped by the court.



The opinion of the court was delivered by

HUSTON, J. For a series of years this court has been engaged in
reviewing the decisions on the act of limitations, of actions on sim-
ple contract debts, &c., and have nearly attained to a construction
accordant with the letter and spirit of the act. But there has been
danger, lest while wo were returning to a correct application of
one act, we were introducing a loose and unsafe construction of
x. x



1362 SUPREME COURT [Pittsburgh

[Farmers and Mechanics' Bank v. Wilson.]

another and more important act, viz: the one limiting the time of
bringing actions for the recovery of possession of lands.

If the owner is about to commence an action, and the person in
possession agrees to become a tenant and hold under him, there is
some colour of reason for saying, the occupant shall not thereafter
say he held at first, and always held for himself, and of course ad-
versely to all others. Yet I would require the acknowledgment to
be express, to be made to the owner or his agent, known as such,
and not only an acknowledgment that the title of the person coming
to claim was good, but also further, a distinct agreement to leave
the land or continue as tenant. And I would not receive, or if
received, I would tell a jury to disregard, all conversations with
neighbours or strangers, or agents, unless they announced them-
selves as such, and were dealt with as persons having a right to
claim, and who were about to enforce the claim; and if we do not
at once come to this, we are in danger of frittering down this bene-
ficial statute, and destroying its usefulness.

Let us see the situation of each of the parties in 1817 and here
I will observe, that the counsel in that district, universally refuse to
bring any deeds or drafts to this court, on the testimony of any
witness; all we have is a statement of facts by the judge in his
charge to the jury. Every one knows, that testimony as to lines
and surveys and interferences is not easily understood without a
diagram: and the very words of a witness, or language of a deed,
and not the purport of them, are often necessary to a correct de-
cision. I shall endeavour to make such a statement of the case, as
will render it intelligible, and in order to this, I shall compare the
opposite titles at certain material points of time. The land lies
north and west of the Ohio and Allegheny, and a right to a tract
could be acquired by paying for a warrant, and settling within two
years, or by making an actual settlement and continuing it; and this
latter mode gave title as complete and perfect, if there was no pre-
vious right, as if the settler began with a warrant; I mean as com-
plete and perfect against every other person; as to the state, it was
subject to the payment of the purchase-money. The title shown
by the plaintiff was founded on warrants dated 1794, in the names
of John Philips and Samuel Pleasants; they were surveyed and re-
turned in 1795. There was no allegation as to any settlement
having been made under these warrants. These two warrants, as
part of a large body of land became the property of the Popula-
tion Land Co., and passed from them to J. B. Wallis and Wm
Griffiths. The dates of the deeds are not given. July 1, 1805,
the Population Company by letter of attorney, appointed Ennion
Williams their agent. He had been a deputy surveyor. In the
fall of that year, he employed John Martin to resurvey and mark
the lines of the company's land, and pointed out as the place of
beginning, the southeast corner of a survey for Alexander Wright,
which warrant and survey were older than that of the Pleasants
and Philips warrants. Martin run and marked the lines, and did



Sept. 1840.] OF PENNSYLVANIA. 263

[Farmers and Mechanics' Bank v. Wilson.]

not include the land now held by the defendant; he left it entirely
to the east the lines and comers made by him are still standing.

In 1809, the Population Company duly appointed Enoch Marvin
their attorney. That company sold to Griffith and Wallis, who in
1813 appointed Marvin their agent, and he continued so till the 1st
of December 1818, when Wallis arid Griffith conveyed to the bank,
now plaintiff. The deed conveys a large body of land, comprising
many tracts, among them John Philips' and 150 acres of the tract
of Samuel Pleasants, and refers to a schedule and general draft,
(none of these produced before us.) The company in 1810 had by
their agent returned to the commissioners for taxation Samuel
Pleasants as 200 acres, and so as I understand it, it continued to be
taxed, until the plaintiff in 1834 and 1835 sold in two parcels to
the defendant 157 acres of it; these parcels lay west of the land in
dispute, and is alleged to be all the plaintiff then claimed. The
defendant claims as follows: in 1795 Joseph Moore went on the
tract in dispute and deadened some trees, but went away and in
1798 after the two years from the peace of 1795 returned and find-
ing no improvement began or made, he built a house and moved
his family on to the land, and continued to reside on and cultivate
it until he sold to defendant in 1812.

In 1802 he procured the deputy surveyor to survey his claim,
241 acres, as by law he was required to do: he was living on this
when Martin made his survey, or re-survey for the Population
Company, who by their lines showed they did not claim his land. (
In 1812 he conveyed by deed duly recorded, to the defendant, who'
immediately moved on and has resided there ever since. In 1817
Mr Marvin, the agent, first went to the land in question, in order
to serve an ejectment on him. He states, that " Wilson said if he
would pass him, he would give no trouble." (These are the words
and the only words before this court). "That in consequence of
this he did not serve an ejectment on him."

A witness who was present says, the conversation resulted in
Marvin saying, " he would at this time serve no ejectment on
him."

How did the parties stand at that date? Each had a title which
each alleged was acquired under and in conformity to the act of
assembly. The construction of that act has been different in differ-
ent courts, and in the same court at different times, in some par-
ticulars; but it is necessary to state how this dispute arose. The
return of survey of Samuel Pleasants calls for adjoining Andrew
Porter on the east, as well as it calls for a south-east corner of A.
Wright as a beginning; now if you begin there, you will not come
near Andrew Porter. The tract in dispute, 241 acres, lies between
them. The judge stated correctly, that if a survey calls for adjoin-
ing another, it must go to that other, although this would make
some of its lines too long. This is a general, but not a universal
rule; if the survey called for were ten miles off, or two, or even one,
it would not applyj it would be apparent it was called for by mis-



264 SUPREME COURT [Pittsburgh

[Farmers and Mechanics' Bank v. Wilson.]

take or fraud. Any person, even the deputy surveyor who made
the mistake, if it was satisfactorily proved to be a mistake, might
take up the land between the two surveys. This was expressly
decided in Weidmari v. Felonley, from Centre county. The judg-
ment of the common pleas was affirmed, and the case is not re-
ported, though an opinion was delivered in the case; I was counsel
for the party who lost the cause.

But in this case, those under whom the plaintiff claimed, desig-
nated their line on that side thirty-five years ago, and included their
quantity. The land then by them excluded, has been occupied and
sold, and by them never claimed until 1837; and I do not agree
with the judge, that under these circumstances the plaintiff could
recover in this case, unless the statute of limitations intervened
but I pass this.

The proposition to the court was, if the jury believed Enoch
Marvin, the plaintiff might recover. No counsel ought, where
there is much testimony, to select a part and ask the court to put
the cause on that. The cause must depend on all the testimony,
and not on six words extracted from the testimony of one witness.
Marvin was relating what had been said twenty years before-*-he
went to serve an ejectment on a man, who by the draft in his hand
did not live on his land. The testimony of the other witness, was
the natural conclusion, " I'll do nothing at the present time." And
the understanding of him and the defendant must have been con-
tingent on a comparison of titles. But I pass this too, and suppose
Marvin to have been the only witness, "If he would pass him he
would give no trouble." Was this a parol disclaimer of any title
in himself? If it was, was it to destroy his purchase, and price
paid, and past and future labour, in favour of a plaintiff who did not
ask him to remove or to take a lease even by parol. In Creswill
v. Altemus, 7 Watts 505, we went far enough: the agent said,
you may live on, but you must pay the taxes and take care
that the timber is not destroyed. In this case there is nothing like
it. In Johnson's Reports we find this case: "A man had been in
possession some years, and heard that another had a better title,
and in 1779 wrote, " I have heard you have a title to my land. As
soon as these troubles are over, if you will come, we will settle this
matter, I do not wish a dispute." The matter rested many years,
and he who received the letter brought ejectment. The court
struck out four years from 1779 till 1783, and as the period before
the letter and after the war, added together, exceeded twenty
years, held the defendant protected by the statute.

In Sailor v. 'Hartzog, 4 Whart. 259, this matter was under the
consideration of this court. The defendant had purchassd from
one in possession, but refused to make payment of instalment of
price still due; met plaintiff to compare titles, and proposed to com-
promise, but neither gave up his possession nor became a tenant.
The matter rested fifteen years, and then the plaintiff brought suit.
The time before and after the talk of compromise, exceeded twenty-



Sept. 1840.] OF PENNSYLVANIA. 265

[Farmers and Mechanics' Bank v. Wilson.]

one years, and this court held, that the defendant was protected by
the statute.

The charge of the judge was as favourable on the construction of
the statute, as it ought to have been, and more so: to put a defend-
ant out. of its protection, both claimant and defendant must dis-
tinctly understand, that defendant not only supposed plaintiff's title
good, but also agreed to deliver possession to plaintiff, or to hold
under him thereafter, to become a tenant and nothing short of this
no loose conversations no inferences from what was said many
years ago no expressions to neighbours, or strangers to the title,
will deprive a man of the protection of this most wise and benefi-
cial statute.

Judgment affirmed.



Chaffee against Sangston.

Under the pleas of non estfaclumznd payment to debt on bond given by a de-
fendant in replevin on a claim of property, the defendant cannot object that part
of the condition of the bond is illegal and void.

Such a defence, where the declaration sets out the condition, must be taken
advantage of by demurrer, or by motion in arrest of judgment, or by writ of error.

It seems that the plea of payment is not applicable to such case, unless the
defendant has actually paid the penalty of the bond.

A clause in the condition of a bond, given by a defendant in replevin who
claims property, that he will return the goods, if a return be adjudged "by law, is
illegal; because the judgment in such case for the plaintiff, can only be for dam-
ages and costs.

Where there are several independent clauses in the condition of such bond,
the illegality of one of them will not avoid the others.

In debt on bond, given by defendant in replevin, the omission to set out in the
declaration the proceedings and judgment in the replevin, must be taken advan-
tage of by demurrer. Such defects are cured by verdict, and cannot be assigned



ERROR to the common pleas of Fayette county.

Harvey Chaffee, one of the plaintiffs in error, being the defendant
in a writ of replevin sued out of the court of common pleas of Fay-
ette county at the suit of Hamilton Stewart, and directed and deli-
vered to John Sangston, then high sheriff of said" county, in due
form of law to be executed, claimed property in the goods mentioned
in the writ, when the sheriff came to execute it; and that he might
retain the possession of the goods under such claim, on the 18th Sep-
tember 1832, with the other plaintiffs in error as his sureties, executed
a bond to the sheriff, in the sum of 14,225 dollars, " upon condition
that if the said Harvey Chaffee should be and appear at the next
county court of common pleas, to be held at Uniontown, in and for

X. X



266 SUPREME COURT [Pittsburgh

[Chaffee v. Sangston.]

said county, on the fourth Monday of October next, then and there
to defend and make good his claim to the said goods and chattels,
and should make return of the same goods and chattels, if a return
thereof should be adjudged by law, and should also save and keep
harmless, and indemnified, the said sheriff in the premises, then the
said obligation to be void," &c. Upon this bond the present suit
was instituted in the court below, by Sangston, the sheriff, for the
use of Stewart, the plaintiff in the writ of replevin. The plaintiff
in the court below, after setting out the bond and its condition in
his declaration, without stating that the action of replevin had been
terminated either for or against the plaintiff therein, for breach of
the condition, alleges merely " that the said Harvey Chaffee did not
make good his claim to the said goods and chattels, nor did he
make a return thereof to the said Hamilton Stewart, or save and
keep harmless and indemnified the said sheriff, according to the form
and effect of the said condition of the said writing obligatory, where-
by action hath accrued," &c. The defendants below put in the plea
of non estfactum and payment, upon which issue was taken, and
the cause tried by a jury, who gave a verdict in favour of the plain-
tiff below, for the penalty mentioned in the bond, to be released on
the payment of the costs of this suit, and the amount of the judg-
ment, with interest thereon, and the costs in the action of replevin,
No. 131, of October term 1832, whereon, judgment was rendered
by the court.

The errors assigned are, 1. That the bond is void, on account of
that part of the condition which requires a return of the goods, if a
return thereof should be adjudged by law, being illegal, as the she-
riff had no authority in such case to require or take it.

2. That the breaches assigned in the declaration of the plaintiff



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