Hart v. Gregg

A mere entry by one co-heir into the land of the ancestor, claiming it all and taking the rents and profits for 21 years, is no disseisin of the other heirs; to make it such there must be some plain, decisive and unequivocal act or conduct on the part of the heir so entering, amounting to an adverse and wrongful possession in himself, and disseisin of the others. If such coheir enters and keeps possession, leases the property, receiving the rents, and erects fences and buildings adapted to the cultivation and profit of the property, without denying possession to the others, or turning them out, but on the contrary takes out a patent 8 years after his entry, expressly in trust for himself and the other heirs of his father, and the lands are taxed in the name of his father for 15 years afterwards, such entry and possession, though held for more than 21 years, are not a disseisin of the other heirs. Even where the record of a deed is improperly admitted in evidence, it is cured by the subsequent production of the deed itself.

THIS was a writ of error to the district court of Allegheny county, on a judgment rendered in that court in favour of the plaintiffs, in an ejectment brought by Oliver O. Gregg and Christian Johnson, plaintiffs below and defendants in error against Jacob Hart, the defendant below, and plaintiff in error. It was brought on the 20lh November 1838, to recover the undivided third part of a tract of land adjoining the borough of Birmingham, containing 81 acres. This tract was part of a larger tract which had belonged to John Ormsby, deceased, and was called for distinction, the Triangle. The plaintiffs claimed as alienees of Gabriel Swazey and Mary his wife, who was alleged to be the daughter of John Ormsby, Jun., deceased, one of the sons of John Ormsby, Sen., deceased. The defendants claimed under the heirs of Oliver Ormsby, deceased, another of the sons of John Ormsby, Sen., deceased. It was admitted that John Ormsby, Sen., died on the 9th December 1805, and his wife Jane died in the year 1791; that John their eldest child was born in 1765, and died in August 1795; Oliver, another son, was born in 1767, and died in 1832. Jane (afterwards Mrs Bedford) was born in 1769, and died in the year 1790, without issue. Joseph B. died in 1803. Sidney, another daughter, was bom in 1774, and was alive at the time of the trial. On the trial in the court below, the plaintiffs gave in evidence a patent to Oliver Ormsby, for 345 acres and allowance,'dated April 16th IS 13, consideration money 276 dollars 78 cents, reciting that said tract was surveyed in pursuance of application No. 1, entered April 1st 1769, by John Ormsby, who since died intestate, leaving issue the said Oliver, and several others to survive him, to whom the above described tract of land descended, &c.‘ The patent was to the said Oliver Ormsby for himself, and in trust for the other heirs of John Ormsby, deceased, a certain tract of land called Ormsby’s villa, &c. To prove the pedigree of Mary Swazey, as the daughter of John Ormsby, Jun., and the marriage of John Ormsby and Lydia Swazey (the mother of Mary) at Homochitto, in Mississippi, the plaintiffs read in evidence a number of depositions, which it is unnecessary now to detail the contents of, and several letters, viz., January 1st 1789, John Ormsby Sen. to John Ormsby, Jun.; July 1791, Buffalo, John Ormsby, Jun , to Nathan Swazey; July 1791, John Ormsby, .Jun., to Lydia Ormsby; March 12th 1825, Oliver Ormsby to Mary Swazey; March 19th 182S, Oliver Ormsby to Mary Swazey. The plaintiffs then offered a copy of a deed from Gabriel Swazey and wife to the plaintiffs, from the records of the recorder of deeds of Allegheny county, duly recorded in his office. The defendants •objected, that this was but a copy, and that the grantees were con'fessedly in possession of the original deed. The court overruled the objection, and at the defendant’s instance sealed a bill of exceptions. The defendants afterwards objected that the acknowledgment was not before any mayor, chief magistrate or officer, as required by law, nor legally certified. But the court were of opinion that these objections were not founded on fact or law, and again sealed a bill of exceptions. It appeared, however, that the original deed was not then in court, but after the-record was read, •it was produced and banded to the defendant. The plaintiffs then gave in evidence the assessment books of St. Clair township, from 1800 to 1819 inclusive, to show the lands formerly of John Ormsby, Sen., which had continued to be taxed in the names of his heirs generally. The defendant denied the marriage of John Ormsby, Jun., to the mother of Mary Swazey, under whose conveyance the plaintiffs claimed. They further contended that John Ormsby, Jun., had been advanced by his father, John Ormsby, Sen.; and also insisted that Oliver Ormsby having had the exclusive possession and enjoyment of the premises was protected by the statute of limitations. The defendant, gave in evidence a deed, dated December 1st 1804, from John Ormsby, Sen., to Isaac Gregg and Sidney Gregg, ;(his daughtei’,) for 50 acres, a portion of the above mentioned tract of 345 acres, and not now in dispute. Also a deed dated July 23d 1804, from John Ormsby, Sen., to Oliver Ormsby, for 200 acres and allowance, another portion of the same tract in consideration of 4000 dollars. Also letters of May 20th 1789, and August 9th 1773, from John Ormsby, Jun., to John Ormsby, Sen. Also a deed, made in 1S04, from John Ormsby, Sen., to Dr. Nathaniel Bedford (who married one of his daughters), for 75 acres and •allowance, another part, of said tract. To show the advancement, the defendant gave in evidence the ledger of John Ormsby, Sen., under date, commencing January 10th 1786, and containing his account with John Ormsby, Jun., in which he charged him with various items of cash, paid to and for his son John Ormsby, Jun., amounting to 600 pounds, and closed by giving him credit for 600 pounds, cash received from Culbertson. To this was annexed a nota bene, that the design of keeping the above account was a memorandum of the different payments which he had made on his son John’s account. The defendant then gave in evidence a deed dated October 26th 1786, from John Ormsby, Jun., to Jane Ormsby (his mother), in consideration of 5 shillings, and for other valuable considerations, in fee simple, for 269 acres and allowance, situaté on the river Monongahela,with general warranty: anda deed dated June 24th 1793,from John Ormsby, Sen., and the said Jane Ormsby his wife, to Robert Culbertson for this tract reciting a re-survey in 1791, by which the tract contained 324 acres, in consideration of 600 pounds, with general warranty. The defendant contended that the 600 pounds for which his father gave credit to John Ormsby, Jun., in his account, was a gift to him of that money: and that John must still be considered as advanced this 600 pounds. The plaintiffs, on the contrary, insisted, that the father had received that amount from the land of John, which John had conveyed to his mother as his trustee, and that the father’s advance of the 600 pounds was thus paid and at an end. The defendant further gave in evidence the book of Oliver Ormsby, containing a list of his lands, made out however as late as June 1S32, containing, among others, about 250 acres east of Birmingham. The defendant also gave in evidence the petition of Oliver Ormsby to the orphans court, in August 1816, for a partition, which was not proceeded in. The plaintiffs then, to show that Oliver Ormsby did not hold or claim the land now in dispute adversely to the other heirs of his father, offered the administration bond of Oliver Ormsby, in connection with testimony that no administration accounts had ever been filed, and that in those times no copies were kept, or memoranda made of granting letters of administration other than filing the bond. The defendant objected that it was irrelevant; the plaintiffs answered that they offered this as rebutting evidence on the subject of advancement and hotchpot, and also to account for Oliver Ormsby’s going into possession and taking the rents, as it was a-common error throughout the whole country, that the administrator or executor had a right to the rents of the deceased. The court overruled the objection and sealed a bill of exceptions. The administration bond of Oliver Ormsby, as administrator of his father’s estate was then read, and the plaintiffs called John M. Snowden as a witness to prove his certificate of the 23d October 1830, as register of the county, to be correct. It certified that he had made lawful search, and was not able to find any inventory or account of Oliver Ormsby. He stated that in early days no minutes were made of issuing, letters of administration, but the bond only was filed, till the year 1816: since that time minutes had been made of their issuing. A. patent dated March 5th 1S00, was issued, to Oliver Ormsby for 294 acres, called Mount Oliver, 59 pounds 6 pence, “ now paid.” This was surveyed in pursuance of an application in the name of Oliver Ormsby, April 1st 1769. The plaintiff contended that Oliver Ormsby being an infant when this application was made, his father was the real applicant, and. the land was an advancement to Oliver. Iu addition, connected surveys of (he Ormsby property, three tracts surveyed in the names of John Ormsby, Sen., John Ormsby, Jun.,. and Oliver Ormsby, were produced. There was further shown a record of an ejectment at November term 183S, for 300 acres (a different tract from the present) brought by Oliver Ormsby Gregg and Christian Johnson against Aaron Watson. Another by the same plaintiffs against Elias Phillips and others for coal hill lots, 61 to 79 inclusive, and 35 acres adjoining. These lands had belonged to John Ormsby, Sen., who died seised, and the plaintiffs claimed under Mary his daughter, and the defendants as heirs of Oliver Ormsby. A great deal of parol evidence was given to show the occupancy and enjoyment of the premises by Oliver Ormsby, after the death of'his father, by cutting wood upon it, renting it to tenants, and receiving the rents, the placing of buildings upon it by the,tenants, their taking out coal, and its being claimed as his and passing as such, the material parts of which are stated in the charge of the court. Grier, president, delivered the same charge to the jury as in the case of Philips v. Gregg, ante, 158. 1. The court erred in allowing the record of the deed to be read, when the original deed was required by the defendant. In Vickory v. Knight, 4 Binn. 212, it is questioned by Brackenridge, J., whether on notice to produce the originals, recorded copies of deeds can be given in evidence in any.case until the non-production is accounted for. But notice not having been given in that case, it was thought by him it would be taking the party by surprise to insist upon it. This case is referred to by Kennedy, J., in, Kern v. Swope, 2 Walts 79,. who cites Lessee of Talbot v. Simpson, 1 Pet. C. C. Sep. 188, where it was held that the registry is but prima facie evidence that the original had been legally proved.. 2. On the subject of advancement they referred to their arguments in the former cases, relative to the Ormsby property. 3. We alleged Oliver enteredafter his father’s death on the triangle as well as the rest of the property. He cleared, changed the fences, put up a house, and claimed and held it as his own for more than, 21 years. The principles of the charge on this head, and answers of the court are incorrect, particularly the answer to the plaintiff's third point.