Taylor v. Dougherty

The opinion of the Court was delivered by Gibson, C. J.

The only question in the cause is, whether there is such evidence that the title under the warrant to Kepple' is vested in the plaintiffs as ought to have gone to the jury; all the others, except those relating to hand-writing, and they are well enough, are resolvable into that. The plaintiffs claim under a patent to one of their predecessors, and against whom ? A naked intruder, who entered, with full knowledge of the fact, in the guise of a settler on warranted land which was not open' to settlement, and who is consequently entitled to no favour. The land was warranted and surveyed in 1773, in- the name of Henry Kepple, of whom nothing.has since been heard, during a period of near seventy years: while those under whose title the plaintiffs claim, exercised the only ownership over the warrant, of which, as a title to wild land, it was susceptible—they paid the only taxes for it.that have ever been assessed on it, and this from 1805 till the trial of the cause. Surely, if the beneficial ownership had been in Kepple, he, or his representatives, would have claimed it long before. The presumption from time alone of an intermediate conveyance from him, as a trustee, would be sufficient to go to a jury as prima facie evidence of the fact. Samuel M’Clay was at least the reputed owner of this warrant; and he, or his children, exercised all the onerous acts of ownership incident to the relation, which were exercised by any one. And the presumption of a conveyance in a case like the present arises more readily than in any other, from the well-known fact that in the days of the proprie *327 tary officers, as was said in Cox v. Grant, ( 1 Yeates 166 ) the person whose name was used in a warrant or location stood as a trustee for him who took out the title and paid the expense of the survey. The same thing was said in Weidman v. Kohr, ( 13 Serg. & Rawle 17 .) Between parent and child, reputation alone was held sufficient to raise or rebut a trust; as in Sampson v. Sampson, ( 4 Serg. & Rawle 331 ;) but continued acts of ownership superadded make the presumption extremely strong. In Galloway v. Ogle, ( 2 Binn. 468 ) a claim to a warrant and survey persisted in for thirty years, without counter claim by any one, was received as primá facie proof that the right had been vested in the claimant by a conveyance, afterwards lost; and in Evans v. Nargong, (id. 55) the procuring of a survey on a warrant in the name of another who had made no claim, was taken for prima facie evidence of ownership, though the deputy surveyor had returned the survey as in dispute betwixt his employer and the warrantee.

The case before us is much stronger, for we have the expenditure of money, not in a single contested act of ownership, but in acts repeated and persisted in for more than thirty years, as regards the ownership of the warrant, and without any adverse claim to it whatever. On every principle of authority and reason, this was sufficient not only to be left to the jury, but in the absence of conflicting evidence to command a verdict. The execution of a deed is presumed from possession in conformity to it for thirty years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine. It is unnecessary to examine the exceptions in detail, as those which are independent of the main principle are palpably unfounded.

Judgment affirmed.