Douglass v. Lucas

The opinion of the court was delivered, May 5th 1870, by Shakswood, J. —

It has undoubtedly been established, under the “ Act for the limitation of actions to be brought for the inhe= *12 ritanee or possession of real property,” passed March 26th 1785 (2 Sm. Laws 299), that a formal entry, animo damandi, or an act of notorious dominion, by which the claimant challenges the right of the occupant, will avoid its operation: Altemas v. Campbell, 9 Watts 28 ; Hinman v. Cranmer, 9 Barr 40; Ingersoll v. Lewis, 1 Jones 212 . But that is a construction required by the words of the statute : “No person shall make entry into any manors, lands, &o., after the expiration of twenty-one years next after his right or title first descended or accrued, or have or maintain any real or possessory writ or action,” &e. “ The statute,” says Gibson, C. J., “\expressly recognises the conservative properties of an entry alone, by treating it as an alternative for an action:” 9 Watts 29 . But the words and the spirit of the Act of April 22d 1856, § 6 (Pamph. L. 533), do not require such a construction. “ No right of entry shall accrue, or action be maintained * * * * to enforce any implied or resulting trust, as to realty, but within five years after such * * * trust accrued with the right of entry, unless such * * * trust shall have been acknowledged by writing to subsist, by the party to be charged therewith, within the said period.” Had the words of this act been “ no entry shall be made, or action be maintained,” there would be reason for holding that the same construction should be applied. But it provides that there shall no right of entry accrue, without an acknowledgment in writing, within the five years. Nor do we understand the opinion of the present Chief Justice, in Clark v. Trindle, 2 P. E. Smith 492, as meaning to go the length contended for by the defendant in error. That opinion must be read with the facts of the case. The cestui que trust was there in actual possession when the Act of 1856 was passed, and continued to be so up to the bringing of the action. “We think,” says the opinion, “ that neither the words, nor by interpretation founded on the mischief to be prevented by the statute, is a case within it, where the cestui que trust has possession and occupancy during the period in which the statute is running.” And again, “we hold that against possession in the cestui que trust, the bar of the statute of 1856 does not run.” The question of a mere formal entry, as distinguished from entry followed by possession and occupancy, was not made, nor were any of the cases on the subject cited in the argument. Williard v. Williard, 6 P. F. Smith 119, is of the same character. The doctrine that entry would toll the Statute of Limitations, was evidently yielded to with great reluctance in Alternas v. Campbell, because of the imperative language of the act, and the general opinion of the profession, hut it was attempted, in that and subsequent cases, to guard it from some of its dangerous consequences. We are not required to adopt it in the construction of the sixth section of the Act of 1856. That section, in fact, is part, not of a statute of limitations, but of “ an *13 act for the greater certainty of title, and more secure enjoyment of real estate” — the preamble of which declares its object to be that “ the people should acquire, bold, and improve their homesteads and estates, in the confidence that they will not be lost by secret and unknown claims, or by fraud and perjury.” There is great reason and justice in holding that when the holder of a legal title, subject to a resulting trust, permits the cestui que trust to occupy and enjoy the land as owner, that he shall derive no benefit from the lapse of time. The act evidently contemplates that “ a right of entry shall accrue, or action be maintained” on behalf the cestui que trust against tbe bolder of the legal title, and that, therefore, the trustee should be either in actual or constructive possession. To say that a bare entry shall prevent the operation of the bar, would open tbe door to the admission of those “ secret and unknown claims,” supported by fraud and perjury, after any lapse of time and death of witnesses, or loss of papers, which the statute was aimed against; for nothing would be required but to repeat such formal entry every five years, to keep them alive in perpetuum.

The evidence in tbe court below showed merely tbe erection of a lumber shanty on the tract claimed by the defendant, and the cutting and carrying away of timber, from time to time, it may be, up to 1864 — two years before this suit. There was no such possession or occupancy, taking it all to be true, as ought to save the bar arising from the lapse of time. A mere temporary occupancy, for the purpose of taking off timber, by one having no right of possession, is not such an actual possession as defeats the constructive possession which the law casts upon the owner: per Agnew, J., in Brewer v. Fleming, 1 P. F. Smith 115; Wheeler v. Winn, 3 Id. 122. We think, therefore, that there was error in tbe answer of tbe learned judge below, to tbe second and third points of the plaintiffs. In regard to the answer to the first point, there certainly was evidence to submit to the jury, which, if believed, would have authorized them to find a resulting trust, and there was, therefore, no error in refusing to affirm that point.

Judgment reversed, and venire facias de novo aAvarded.