Den ex dem. Wright v. Wright

1. If a deed be altered by the party to whom it belongs, even though in an immaterial part, such alteration avoids the deed ; otherwise if the alteration be made by a stranger. 2. A latent deed, that is, a deed kept for twenty years or more in a man’s scrutoire or strong-box,, accompanied with no actual distinctive and adverse possession, is entitled to no consideration in a court of justice. 3. If a man have undisturbed possession of lands for twenty years, no action of ejectment will lie against him. 4. A mortgagee in possession can never be ousted by the mortgagor or any claiming under him, until the mortgage be paid. ' 5. An executor or trustee can neither directly or indirectly, either by auction or private sale, sell and convey the trust property to himself; but all such sales and conveyances are void in law.

IN EJECTMENT. This cause was tried at the Middlesex Circuit in June, 1823, before his honor the Chief Justice. It was admitted, by the counsel on both sides, that Richard Wright the elder, who was the father of Kamuel, the lessor of the plaintiff, was seized of a tract of land of seventy acres, or thereabouts, in the township of Woodbridge, of which the premises in question are part. The plaintiff then, in order to make out his title, offered in evidence, and read to the jury, a deed from the said Richard to the said Kamuel, dated May 13, 1782, for thirty acres of the said tract, being the premises in question, expressing it to be for the consideration of £240. No direct evidence was given of the actual payment of this consideration or money, but it was sworn by the witness who had written and who hdd proved the deed, that the said Eichard had been in a sickly and consumptive state of health for seventeen or eighteen years before his death, though he retained his reason perfectly till his last moments; that during this time he required great care and attention, and for nine or ten years of the said time was never left alone at night; that Kamuel lived with him in his house; that he was a very careful, industrious, steady man, and had the whole management of the farm; and that the proceeds of his labor went to the support of the old man’s household, of which Kamuel himself and his children were part, and the witness supposed, though she did not remember it was so expressed, that the old man thought himself indebted to Kamuel for his services to the amount of the consideration money mentioned in *the said deed. The plaintiff further gave in evidence, by witnesses called for that purpose, that after the death of Eichard, which was in 1793, Kamuel, though he movedmut of the house in which he had lived with his father, continued at times to pasture, and occasionally to cut firewood on the land contained in the deed of 1782, and upon this evidence he rested his claim. The defendant then, by way of defence, offered in evidence, and read to the jury, a mortgage given by the said Eichard Wright, the elder, to his son Eichard, who was the husband of the defendant Agnes, dated in 1784, and covering the whole seventy acres, of which the premises are part, for securing the payment of £463, which mortgage still remained uncancelled, and to which the said Kamuel is one of the subscribing witnesses. The defendant then offered to prove, that Eichard the son took out letters of administration upon the estate of Eichard the father; that he obtained an order of the Orphans’ Court of the county of Middlesex to sell so much of this land, beginning at the southerly side thereof, as should be sufficient for the payment of debts, of which this debt secured by the mortgage was one; that, in pursuance of this order, he did set up and sell the whole seventy acres, the whole being necessary for the payment of debt to one William Edgar, at the rate of £8 6s. per acre — he, the said William Edgar, by a previous contract and understanding between them, bidding for and purchasing the same to and for the use of the said Eichard, and that conveyances were made accordingly, that is to say, a conveyance from the said Eichard to the said William, and a re-conveyance from the said William to the said Eichard, but that the said William never paid, and, by the terms of the contract, never was to pay, any part of the purchase money. To the reading of these deéds, it was objected by the plaintiff, and the objection was sustained by the court, upon the ground that the executor or trustee can neither directly or indirectly, either by auction or private sale, sell and convey the trust property to himself, but that all such sales and conveyances are void at law. The defendant then gave in evidence, that the said Eichard, the son, immediately after the said pretended sale, took possession of the house in which his father had lived, -and soon after pulled it down and built a new one at or ■near the same place, in which he lived till his death, which was in 1809, and that during all this time he exercised *acts of ownership upon that part of the land contained in the deed to Kamuel, as well as on the other part of it. Upon the land claimed by Kamuel, therefore, there was evidence of acts of ownership both by Kamuel and Eichard, after the death of their father, at least up to the death of Eichard, in 1809. After the evidence had been closed, or nearly closed, the defendants discovered, or thought they discovered, two erasures and alterations in Kamuel’s deed, which had not been accounted for, and thereupon moved the court, that the plaintiff’s evidence, so far as related to that deed, should be overruled. But the court refused to overrule the same, because it is the province of the jury to determine, in the first place, whether there be an erasure and alteration in a deed; and secondly, if there be, whether it was made before or after the sealing and delivery of it. The counsel then summed up the case with great ability on both sides, both as to the law and the fact, and then the court gave the following charge to the jury, viz: Gentlemen — Ho aid you in making up your verdict, I will state to you, with as much precision as I am able, three or four principles of the law, which seem to me to be more or less involved in this case. 1. It is a clear principle of the law, that if a deed be altered by the party to whom it belongs, even though in an immaterial part, such alteration avoids the deed; that if it be altered by a stranger, that is, a person to whose custody it may have been committed, or into whose hands it may have come, in a material part, such alteration avoids the deed. The date, in this case, is a very material part, almost the whole controversy turns upon it. If, therefore, you should be of opinion that the date of this deed has been altered, that is, if it has been changed and made different from what it was when the deed was sealed and delivered, you ought to consider it as a void deed, which can carry no title before you. To set it up as a deed of any other date than that which it bears upon the face of it, upon the pretence that the original writing can be discerned and read, would be unlawful, for if altered at all, it is wholly void — it is good for nothing. 2. It is a clear principle of the law, that a latent deed, that is, a deed kept for twenty years or more in a man’s scrutoire or strong box, accompanied with no actual distinctive and adverse *possession, is entitled to no consideration in a court of justice. It is no ground for recovery in an action of ejectment against the actual possessor. This deed, even if it should be considered as a good and valid deed at the time of its execution, and notwithstanding the pretended erasures, is dated forty years ago' or more, and whether such possession as I have described has accompanied it, is a matter of fact for you to determine upon the evidence, for, as to the fact, it does not belong to the court. So far as to the title of the plaintiff.— Then as to the title of the defendant— 3. It is a clear’ principle of law, expressly enacted by Statute, that if a man shall have the full and undisturbed possession of land for twenty years, no action of ejectment will lie against him to oust him of the possession. It is immaterial by what means he may have come into possession, it is immaterial whether he be with title .or without title, whether it be by right or by wrong, by fraud or by force; if he have had the full and uninterrupted possession for twenty years it is sufficient.* I do not speak of possession under leases or other contracts for temporary enjoyment, or for* tilling, cutting wood, &c., for such possession is always the possession of the landlord or him who gives the lease, permission or privilege. Even, therefore, if you should find the deed of 1872 to be a good -deed, yet if you find that Richard Wright and the defendants who claim under him have had the clear and exclusive possession ever since the pretended sale in 1794, however fraudulent, or rather however unlawful that sale may have been, yet the plaintiff in this action cannot prevail against them. 4. I think it a clear principle of the law. also, that a mortgagee in possession can never be ousted by the mortgagor, or any claiming under him, till the mortgage be paid. Time can never run against him, because he is in the actual possession of all the law gives him, and the possession itself is prima facie evidence that the money is not paid. It is true that if this deed *were given before the mortgage, the mortgage can have no operation upon it or upon the land which it conveys; it is a title anterior. But if it were given after the mortgage, even though it should be otherwise considered a valid deed, yet it cannot prevail against the mortgage, it is subsequent to it, and the mortgage must be first paid. I think you may take these to be the settled principles of the law. How they may operate in this case, will depend upon the facts as you may find them. If the party plaintiff be barred by none of these principles, I see no reason why he shall not have your verdict. A little deliberation will, I hope, enable you to settle this controversy upon principles both of law and justice. Upon this state of the case, the jury rendered a verdict for the plaintiff. A rule for a new trial was taken on behalf of the defendant, which was argued by Wood, in support of the rule. '