Thompson v. Carmichael , 122 Pa. 478 ( 1888 )

Opinion,

Mr. Justice Hand:

The facts of this case are presented in a case stated. John Carmichael, Sr., was the owner in fee of the lands in controversy in 1854, and was the common source of title. He conveyed the same in April, 1854, to Aaron Carmichael, in trust, for the use of Phoebe Thompson, daughter of John, Sr., and defendant below, and Elijah Thompson, her husband, for and during their natural lives and the life of the survivor of them, with the right to occupy and improve the estate, hut the same to he in' no way liable for the sole or joint debts of Phoebe or Elijah, and from and after the decease of the said Phoebe and Elijah, for the use of the heirs of the body of the said Phoebe forever. They took possession under said deed, and held the same until January, 1858, when by deed of general warranty they reconveyed the same to John Carmichael, Sr., for the consideration of three hundred dollars. Under this deed John, Sr., took possession and occupied as his own until he devised it to John, Jr., hy Ms last will and testament, dated March, 1861, and probated January, 1866. John, Jr., took possession and occupied it by himself and tenants until February, 1885, when he conveyed it to A. D. Carmichael, the plaintiff below. On or about April 1, 1885, the premises being vacant the defendant, Phoebe Thompson, went into peaceable possession, and has occupied it since, claiming title.

This case has been in this court before on the single question whether the title was in the trustee or cestuis que trust. It was held to he an active trust and the title in the trustee. The defendant was a feme covert when she executed the deed of January, 1858, and remained so until December, 1888, when her husband died. She then had and now has heirs of her body living. The sole question before this court in this controversy is whether the possession of the plaintiff and those under whom he claims, continued for twenty-one years and upwards, would give title under the statute of limitations of March 26, 1785. It is claimed by the plaintiff in error that the possession must be continued during thirty years, under the act of April 22, 1856. The learned judge of the court below held that title was acquired under the former statute, and in this he was clearly right. The legal title was in the trustee <5f Phoebe Thompson. Both he and she, through him, had a remedy at law to assert and maintain her rights. The possession of John Carmichael under the deed of 1858, was a disseisin of the trustee, and being kept up for twenty-one years it ripened into a perfect title. So far as Phoebe was concerned, she was really under no disability; she could look to her trustee, and-through him regain her lost possession within the proper time. In the case of Huffman v. Huffman, 118 Pa. 58, cited by the learned counsel, there was no trustee, and the legal disability existed as contemplated and guarded by the act of 1856.

Judgment affirmed.