Olwine v. Holman

1. One claiming under a deed is bound by the reservations and recognition of title in another which is contained in it. 2. When a vendor sells a piece of land which is enclosed with his other land and the piece sold continues to be enclosed and used and occupied by the vendor as before, such occupancy will be deemed to be in subservience to the right of the vendee and not adverse thereto, unless the intention of the vendor to hold adversely be manifested by some act of hostility to the title of the vendee. See also 7 W. & Ser. 160. 3. The owner sold a lot of ground in 1814 which was then enclosed in a field with other ground belonging to him, and it so continued till 1831 when he conveyed the farm of which the field formed a part to another, with a reservation of the lot previously sold: Held, that such conveyance was a recognition of the title to the lot previously sold and was conclusive against the last grantee that the former possession of the lot was not adverse.

Error to tbe Common Pleas of Chester county. This was an action of ejectment by Maria R. Olwine v. William W. Holman, who had for his guardians George Baugh and H. Neff, to recover the undivided half part of lot No. 47, in the town of Bath, at Chester Springs, Chester county; and also the undivided half part of the one hundredth part of the Bath lot in said town, which lot contained 101 perches and fifty-nine hundredths. The plaintiff claimed under deed to her by Abraham Olwine, dated 18th February, 1852. The claim was under James Bones, who at one time owned a tract of 152 acres, on which was the Yellow Springs, now called the Chester Springs. In 1814, he had a town laid out on this tract, which he called “Bath.” The lots were 101 in number. The lot which embraced the spring was called the “ Bath Lot.” The others were numbered from 1 to 100. He determined to grant with each lot conveyed a right to the Bath lot. He disposed of a number of the lots, and with each one conveyed he granted the one-hundredth part of the Bath lot. On the part of the plaintiff, it was contended that the deed conveying each lot, also conveyed a fee simple title to the undivided one-hundredth part of the Bath lot; whilst on the part of the defendant it was contended that the right granted was a right appurtenant to each of the 100 lots, viz. a right to go upon the Bath lot, and use the water of the spring. A portion of the lots was disposed of by a lottery, and lot No. 47 was one of them. The title exhibited on part of the plaintiff was as follows :— A deed from James Bones and wife to Jacob Nailor and James Dilworth, dated 27th November, 1814, for lot No. 47, and the undivided hundredth part of the Bath lot, to hold as tenants in common. This deed was recorded on 9th April, 1824. 2. A deed from the sheriff of Chester county to Abraham Olwine, dated 11th March, 1830, for the interest of Jacob Nailor in the said premises. 3. A deed from Abraham Olwine to Maria R. Olwine, the plaintiff, dated February 18, 1852, for the interest obtained under the sheriff’s sale and deed. The defendant claimed under the statute of limitations, which to be effective it was necessary should go back to February, 1831, the action being brought on 23d February, 1852. It appeared that some of the lots conveyed by James Bones were fenced and built upon. A majority of them were not fenced separately, but were used for farming purposes by Bowes, and so used until 1830. This was the case with lot No.,^7. In 1830 Bones removed from the farm, and Anthony W. Olwine, — who was his son-in-law, — in April, 1830, took possession of the premises which Bowes left. The character of the agreement under which he entered, did not appear. Afterwards Bones and wife, by deed dated 14th April, 1831, conveyed to said Anthony W. Olwine- the tract of 152|- acres, being the same farm on which the lots had been laid off; but in this deed were reserved thirty-four lots, which had been previously conveyed by Bones to other persons, and lot No. 47 was one of those reserved, the same having been previously sold to Nailor and Uilworth. On the next day after the date of this deed, viz., on the 15th April, 1831, Anthony W. Olwine mortgaged the whole tract to Thomas Woodward for $7500, with a reservation of 24 of the 34 lots reserved in the deed by Bones; but lot No. 47 was not one of the 24. It had, with seven others, been inserted in the draft of the mortgage, but they were erased. To May Term, 1847, a fi. fa. was issued on a judgment of Woodward against Anthony W. Olwine for $500, and under this the mortgaged premises were levied upon, with the exception of the lots reserved in the mortgage. On an alias vend. exp. to February Term, 1838, the premises levied on were sold, and were struck off to Abraham Olwine, but he not having fully complied with the terms of sale, a deed -was executed for them by the she^ riff to Margaret Holman, who was the next highest bidder, conveying the mortgaged premises subject to the reservations therein. Margaret Holman took possession of the premises and of lot No. 47; afterwards had an expensive house built, partly on lot No. 47, and continued to occupy it till her death. After her death, it was, in 1850, taken by her eldest son, Frederick Holman, under proceedings in pai’tition; and he died in 1851, leaving his son William W. Holman, a minor, as his heir, who was the defendant in this suit. From the time that Anthony W. Olwine entered into possession of the farm in 1830, until 1836, he used lot 47 with the Bath lot, lot No. 47 not being separately enclosed, but being in one of the fields which was cultivated. The land was assessed in the name of Anthony W. Olwine till 1838, when Mrs. Holman took possession. In 1836, Anthony W. Olwine sold the undivided half of the spring property to Joseph Wood for above $7000. In this sale the half of lot No. 47 was included. In some months after-wards, Olwine and wife, and Wood, united in a sale to Horace Weeks for $42,000. This sale purported to be of the whole tract of 152 acres, reserving about 12 lots, lot No. 47 not being included in the reservation. Subsequently, the sale under the mortgage took place as the property of Anthony W. Olwine. Haines, J., in his charge to the jury, observed that Anthony W. Olwine used the property as his own — paid taxes, and, on two occasions, sold it as his own. He expressed the opinion that the evidence, if believed, was sufficient to establish an adverse possession of the lots in dispute — that this was a question for the determination of the Qourt, and he instructed them that a hostile possession, for a period of 21 years, had been shown on the part of the defendant. That the Bath lot was in the same category as lot No. 47. Two points had been submitted on part of the plaintiff; the first of which was, that the possession of one tenant in common is the possession of the other, and to constitute ouster so as to give title by 21 years’ possession, the possession must commence by some clear, open, positive, and unequivocal act, amounting to an open denial of the right of the co-tenant. The 2d was, that no such ouster had been shown by the defendant. As to the first, he observed that the jury, under the circumstances referred to, might presume an actual ouster, though none be proved; and he disaffirmed the second point. Verdict was rendered for the defendant. It was assigned for error: 1. That the Court erred in charging that A. W. Olwine held the property adversely. 2. That in the opinion of the Court the evidence was sufficient to establish an adverse possession for 21 years of the lots in dispute. 3. In charging that the Bath lot stood in the same category with that of Lot 47. 4. In disapproving the plaintiff’s second point. 5. In charging that A. W. Olwine mortgaged lot No. 47 to Thomas Woodward. 6. In charging that Abraham, Olwine concealed his title to the said lots, and suffered them to be sold as the property of another.