Rohrbach v. Sanders ( 1905 )

Opinion by

Mb. Justice Fell,

The first question presented by this appeal is what estate Sarah Ann Simpson took under the following clause of her husband’s will: “ I give and devise unto my beloved wife Sarah Ann and to my son Henry V. Simpson, all my property, both real, personal and mixed to be held for herself and in trust for my said son—provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son Henry V. Simpson and his heirs forever, and the trust thereby created in favor of my son shall after such marriage be null and void.” The testator’s widow did not marry again, and was in possession of the real estate until her death in 1891, thirty-two years after the death of her husband.

At the trial of an action of ejectment brought by the grantees of a purchaser at a sheriff’s sale of the son’s interest, the jury were instructed that Sarah Ann Simpson took a defeasible fee simple estate in the undivided one-half of the real estate, which became an absolute fee simple. This instruction was correct. No intention is disclosed to give a life estate merely and the words used are apt words for the creation of an estate upon condition. There was no limitation over in the event of the widow not remarrying, and an intestacy as to one-half would result in that event if the fee was not in her. The devise was of the property itself. It vested immediately and was in fee, defeasible on the happening of an event which did not happen. In principle the case is not distinguished from Redding v. Rice, 171 Pa. 301.

The second question is whether the statute of limitations defeated a recovery of the one-half interest of the son. The testator died in 1859. The trust as to the son was a dry trust. His whole interest was sold-by the sheriff to the plaintiff’s grantors in 1880, twenty-five years before this action was commenced. During this period of time there was no assertion of title by th¿ plaintiffs or their predecessors in title, and the property was in the exclusive possession first of the widow of the testator until her death in 1891, and then in his son until he was adjudged .a lunatic, and afterwards in his committee, who exercised all the rights of exclusive ownership. They occupied or rented the property, received the rents and profits ■and appropriated them to their own use, paid the taxes, and made alterations and repairs. The court left it to the jury to determine whether these acts were so inconsistent with joint ownership as to give rise to and sustain an inference of ouster. The instruction on the subject was as follows : “ .... when one tenant in common enters upon the whole and takes the profits and claims the whole exclusively for twenty-one years, the jury may presume an actual ouster, though none be proven, and as between tenants in common, a legal presumption of ouster arises in favor of one who has been in the peaceable and exclusive possession of the profits of the land for twenty-one years, and the taking of the whole profits exclusively is evidence from which a jury may draw the conclusion of ouster and adverse possession.”

The possession of one tenant in common is prima facie the possession of his cotenant also and the mere reception of profits, payment of taxes, and making repairs without more will not sustain a claim of ouster or adverse possession : Bolton v. Hamilton, 2 W. & S. 294. The claim of exclusive right may be established by proof that one tenant in common has entered on the whole land and taken possession and occupied the whole, claiming the profits as his own for twenty-one years without acknowledging the claim of his cotenant: Law v. Patterson, 1 W. & S. 184. It was said in Frederick v. Gray, 10 S. & R. 182, that where one tenant in common enters on, and takes the profits of the whole under an "exclusive claim for twenty-one years the jury ought to presume an actual ouster though none be proved. The rule is thus stated in the opinion in Susquehanna, etc., R. R. & Coal Co. v. Quick, 61 Pa. 328. “It is therefore certainly the law that open, notorious and uninterrupted possession of the whole by a tenant in common for more than twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself, is evidence from which a jury may draw the conclusion of an ouster and an adverse possession. The distinction is that it does not afford a legal presumption, which would entitle the court to withdraw the question from the jury, and instruct them that they must infer an ouster and adverse possession, if not successfully rebutted.”

We find no error in the record, and the judgment is affirmed.