Ege v. Medlar , 1876 Pa. LEXIS 197 ( 1876 )

Mr. Justice Gordon

delivered the opinion of the court, October 9th 1876.

On the second day of June 1815, Michael Ege, the elder, being then owner of some eighty-seven tracts of land, situated along the South Mountain, in the counties of Cumberland and Adams, executed a deed, in trust, embracing, inter alia, the land in dispute, to John Miller, for the use of Elizabeth, wife of George Ege, one of the sons of the grantor. On the next day (June 3d), he executed for his three sons, George, Michael and Peter, severally, deeds embracing all the land remaining of the said eighty-seven tracts, not included in the trust deed above mentioned. The deed prepared for George was intended to convey all those tracts “ comprising the Holly Iron Works estate.” George and Peter refused to accept of the deeds thus executed to them; hence, on the death of Michael Ege, Sr., August 31st 1815, the lands recited in those deeds remained undisposed of. In September of the following year, partition was made, in due form, of the fifty-nine tracts remaining to the estate of Michael Ege, and those included in and designated as the “ Mount Holly estate ” were accepted by and confirmed to George Ege, under whom the defendants claim title. This estate, so accepted by George, was clearly defined in the proceedings of partition; and, as those proceedings were conducted by parties of intelligence, of full age and under the, direction of eminent counsel, the probabilities of mistake are excluded. Vide Kille v. Ege, 29 P. E. Smith 15.

The Moses Foulke tract, now in controversy, was not one of those included in the partition, and could not, therefore, have been one of those assigned to George Ege. It follows that the sale by the sheriff in. 1838, of the Mount Holly estate, as the property of George Ege, to the Farmers’ find Mechanics’ Bank, did not and could not pass title to the land in controversy, even though the parties to such sale so intended.

■ But, it is argued, and the court so held, that, by the amicable condemnation executed by. George Ege on the 23d of December 1836, this tract, by the designation of outside boundaries, was included in the Mount Holly property; that the sheriff’s deed, purporting to convey all the land within such boundaries, gave the Farmers’ and Mechanics’ Bank and its vendees color of title to the Moses Foulke tract, and, hence, their entry upon part thereof gave them constructive possession of the whole, the continuance of which for twenty-one years made them a perfect title by the Statute of Limitations. This would be correct if (1) the description in the condemnation and deed necessarily include the land in suit, and the party purchasing honestly believed that the sheriff’s sale did pass the title to such land. If (2) the bank, or its vendees, did enter upon and claim this Moses Foulke tract eo nomine. ■ But, in the first place, it was assuming too much to take for granted the first part of this proposition. It is true that this land lay within the outer lines of the Mount Holly estate, as described in the amicable condemnation, but so also did the Michael Ege and William Cox tracts, and, perhapSj several others of the trust estate; it is, however, going- a great way to suppose, in the face of the fact that an accurate description of the Mount Holly property was of record, that the intention of George Ege was to include all this territory in the levy, or that the agents of the bank supposed that, by the sheriff’s sale, they got title thereto. If, however, it was known, or ought to have been known, that that sale did not, in fact, embrace the Moses Foulke tract, then the purchaser acquired no color of title; for, as is said by Gibson, C. J., in McCall v. Neely, 3 Watts 72, “an entry is by color of title when it is made under a bond fide and not pretended claim of title existing in another.” Whether the circumstances warranted the defendants* 'vendors in supposing they had acquired title by the sheriff’s sale, was a question not for the court, but for the jury. But, suppose they had color of title, then, was it definite or.indefinite ? Was it to the Moses Foulke tract eo nomine, or was it general, embracing, without particular definition, all the lands within the Mount Holly property ? If it were the former, then might the possession of the defendants be extended, constructively, to the whole tract; if the latter, that possession must be confined to the actual work on the ground. It is not to be forgotten that mere color of title is valuable only so far as it indicates the extent of the disseisor’s claim; if it fails in this, it fails altogether: Barnhart v. Pettit, 10 Harris 135.

The question then recurs, did those, from whom the defendants derive title, enter upon this land claiming by virtue of their color of title to the lines of the Moses Foulke tract ? . If they did so •claim the evidence fails to show it; oh the other hand, it is said by Frederick C. Kropff, who, at one time, with Paul D. Geisse, owned the Mount Holly estate, that they knew nothing about the Moses Foulke survey, but dug ore and cut timber where it suited them over the whole estate. From this testimony, it is manifest, that the claim was general to all the lands lying within the external lines of the Mount Holly property, without regard to internal tracts or divisions, and that it was under this general claim the bank and its vendees entered into the possession of and held the furnace fields. We need hardly say, that it is not possible for an indefinite claim such as this, .to carry the right of the disseisor beyond his mete pedis possessio. Thus, under the evidénce as we now have it before us, the controversy is narrowed down to that part of the premises which the defendants and their vendors have had in actual possession. Whether they can hold even this depends upon the time when the Statute of Limitations began to run against the plaintiffs’ right of entry. The plaintiffs claim as heirs-at-law of Elizabeth Ege, the wife of George, by virtue of the deed of trust executed to John Miller, for her use, by Michael Ege, Sr.; whilst the defendants claim under George Ege. Now it is obvious that if, as the plaintiffs contend, George Ege had an estate in curtesy in the lands thus conveyed to his wife, the right of entry did not accrue to them until his death, and hence the statute could not begin to run before that period : Gernet v. Lynn, 7 Casey 94 ; Shallenberger v. Ashworth, 1 Id. 152 ; Crow v. Kightlinger, Id. 343. It is alleged that the Act of 1856 has introduced a different rule. Such however is not the case. That act does but affect the former rule as to persons of unsound mind, married women and minors, who, previously thereto, had ten years after the removal of their several disabilities within which to bring suit against such as might have intruded upon their right of entry; now, however, by the statute above mentioned, the lapse of thirty years, from the time when such right of entry accrued, bars their right of action, though the disabilities therein referred to be not removed: Hunt v. Wall, 25 P. F. Smith 413. It will be observed, however, that the right of action in such persons is presupposed, for the time runs from the period when the right of entry begins, but where this right does not exist no action lies, and, hence, the statute can have no effect. So, in the case in hand, to say that the statute shall run from a date when the heirs of Elizabeth Ege had no right of entry, and consequently no right of action, is to say that they might be barred of such right by no default of their own and without the possibility of remedy. If, then, George Ege was tenant by the curtesy, the defendants, holding under him, could not be disturbed in their occupancy of the premises until his death. From that period the right of entry vested in the plaintiffs, and from that period only did the statute begin to run against them.

That George Ege had curtesy in this property is not doubtful.' The estate conveyed to Elizabeth was a fee; whether legal or equitable matters not, as at law, in either case, curtesy attaches as an incident. Unless, therefore, there is something in the grant which clearly exhibits an intent to exclude the husband’s right, equity will not interfere to annul the legal intendment: Cochran v. O’Hern, 4 W. & S. 95 ; Stokes v. McKibbin, 1 Harris 267. We discover no such intent in the deed before us. The expressions therein contained, such as, “ for the purpose of promoting the interest of said Elizabeth, separate and apart from that of her said husband,” and “ to and for her and their sole and separate use and benefit,” are but the ordinary terms used in such instruments, and import no" intention to strip the husband of his curtesy. That no such intent existed in the mind of Michael Ege is further obvious, from the fact that he makes no provision to prevent the management or proceeds of the estate from passing into the hands of George. The duties of the trustee are purely passive except he might be directed to sell by the wife, but, even in that event, he could not control the disposition of the proceeds, for they were to pass to her absolutely and unshackled by any condition or restriction whatsoever. Almost of necessity, the management of this estate passed into the hands of the husband, and had it been sold there was nothing to prevent her making a gift to him of the whole proceeds; so, in case of her death, he would have been entitled to a share thereof under our intestate laws. There being nothing, then, in the deed of trust, impairing the husband’s rights or altering the statutory order of descent, an estate by the curtesy must be taken to have vested in George Ege : Dubs v. Dubs, 7 Casey 149.

It is supposed that the power of sale found in the trust deed operates against this conclusion; but as that, of itself, does not work a conversion or alter the character of the estate granted, we cannot understand how it could be made to destroy one of the incidents thereof. The execution of the power might have had such an effect, but not the power unexecuted.

We think tké plaintiffs’ fourth point should have been affirmed. The evidence of the execution of the deed of trust is direct and positive. The lands which it purports to convey were not included in the proceedings in partition; it appears to have been duly acknowledged before competent authority, and probate was made of it by George D. Foulke, the subscribing witness, only a few days before it was recorded. Without an attempt to impeach, directly, this testimony, we cannot see how the fact that the identity of the George Ege tract, as described in the deed of trust, with the James Love tract, as described in the partition, can have the effect, even remotely, to prove the forgery of the deed of trust. At best it exhibits a mistake made, not, indeed, by Michael Ege, for his deed conveyed the land without regard to whether it was known as George Ege or James Love, but by Peter Ege and those who conducted the partition, and it is rather singular that such a mistake should be used to impeach the deed of the ancestor made in 'the preceding year. The proposition has the effect, not only to cure a party’s own mistake, but to make it evidence in his own favor. So the force of the fact of the identity of the courses and distances set forth in the deed of 1815, with those in the return of survey made by Davidson in 1845, is completely nullified by the other fact, stated in the charge of the court, that the same description, with the exception of a single line, is to be found in the deed of Stephen Foulke to Kittera, Jago & Boyd, in 1795. In view of all the circumstances of this case, we think that the evidence of the fraudulent making of this deed, after the survey of 1845, is so slight that it ought not to have been submitted to the jury.

Ordinarily an abstract of title, filed by either party, under a rule of court, would be evidence; for its principal design is to relieve the case of the proof of such papers and evidences of title as may therein be admitted. Not only are the parties thus relieved of the preparation of unnecessary testimony, but the public business is expedited. Perhaps, as the plaintiffs had in evidence all that by the abstract was admitted, the ruling was harmless; nevertheless it would have been proper to have sustained their offer.

Under the 9th section of the Act of hjarch 21st 1772, the Mount Holly Paper Company, as landlord of the defendants, was properly admitted of record to defend for the land covered by its leases.

It was right to refuse to permit the opinion of the Supreme Court to be read to the jury: Good v. Mylin, 1 Harris 588.

Judgment reversed and a venire, facias de novo awarded.