Doe v. Howell — 6 Del. 178

Majority

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Doe on the demise of Elihu Jefferson v. John Howell, tenant in possession.

Headnote

An action of ejectment cannot be maintained on possession alone short of twenty years against a .mere trespasser, who enterp without any color of title and ousts the party in possession.

A recital in a deed that the grantor had taken, in the conveyance of the land to him, only fourteen acres, and no more, of the premises in dispute, is evidence in itself of the fact admitted, in the recital, and, as such, concludes the parties to the deed, and all deriving title under it, from claiming any more of the land.

This was an action of ejectment, to recover certain lands in Appoquinimink Hundred, Hew Castle County, in which the case turned chiefly on the question of possession. Trial and verdict for defendant. The plaintiff' having obtained a rule to show cause wherefore a new trial should not be granted on the following grounds: first, that the'

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Court erred in charging the jury that no person was entitled to recover land in an action of ejectment on any possession merely, short of twenty years; and secondly, because the Court also erred in charging the jury that the plaintiff was estopped or concluded by the recital contained in the-deed from Seth King to John Lowber, through and from whom in the chain of paper title exhibited and ad-, duced by him he derived Ms title to the premises in dispute, from claiming, by virtue of that deed, more than the fourteen acres of land stated in that recital to be all the land which the grantors of Seth King, 'by their deed of bargain and sale, conveyed to him, now showed cause.

D. M. Bates, for the plaintiff:

It was undoubtedly true that no one could acquire a right to land as against the legal, rightful owner of it, by any possession merely short of a continuous adverse possession of twenty years. But where a party, without any other right or claim of title, had been in the actual, peaceable, and quiet possession of land for a period of less than twenty years, was ousted and dispossessed by a mere trespasser and wrong-doer without any color of title, he may recover the premises in an action of ejectment against such a trespasser on that possession merely; for the object of the action of ejectment is to recover the possession of land; and the mere possession without reference to its duration in point of time, and with or without color of title, was available in such an action, to entitle the party to recover the possession as against a mere trespasser without color of title, unless the disseisor had retained the possession for twenty years after the ouster, or had himself been in the peaceable possession of it previous to the disseisin of the plaintiff; because the law presumed that, being in the peaceable possession of it, he was in the rightful possession of it, and. was prima facie the lawful owner of it. But if the former possessor relinquishes the possession and the defendant enters peaceably, it will not avail the plaintiff, and he cannot recover; for in that case the principle with which he started would not

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apply, because it only applied in a case of actual ouster by an actual trespasser who entered without any color of title whatever; and the reason of the principle and distinction was that ejectment was a possessory action, and for the recovery of the possession merely. Smith v. Lorillard, 10 Johns. 356 ; Cro. Eliz. 438; 2 Saund. 110; 14 Eng. C. L. Rep. 54; 41 Eng. C. L. Rep. 23; 3 Phil. Ev. 457, 484; Ang. on Lim. 397; 5 Wheat. 241 ; 5 Curt. Cond. Rep. 241; 28 Eng. C. L. Rep. 54; 3 Man. & Ryl. 111.

On the other ground he did not mean to rely on any technical objection merely to the, charge in relation to what was said as to the effect of the recital in the deed from King to Lowber; but considering it in the light of an admission merely, and not as an estoppel, he contended that an admission in the recital in a deed could only be conclusive as to the subject-matter of the conveyance, and not as to anything else which happened to be stated in it. As for instance any admission in the deed in regard to the fourteen acres conveyed by it would be conclusive as to that, but no statement as to anything outside of the deed would be so. But such admissions and recitals bind only the parties to the deed and their privies in estate, in blood, or in law; and none but those who claim after the deed is made, and not strangers or those who claim by a title paramount to the deed, were bound by any admissions or recitals which it contained. Kow the defendant did not claim title to the premises in question under King or Lowber, and there was no privity between him and them in relation to it in any sense, and he therefore could not be bound by anything recited or admitted in the deed from the former to the latter; and if he was not bound by it, then the plaintiff" could not be bound or concluded by it from setting up any claim he might see proper to assert to the other part of the twenty-eight acres against the defendant, because the admission or recital relied on as such must be mutual . and equally binding on both parties. Estoppels were odious and not to be encouraged in law, and the principle and reason of the rule would apply with the same force if the

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recital was relied on as the admission of a fact which would conclude the plaintiff from claiming more than the fourteen acres against the defendant or any other person. 1 Greenl. Ev., secs. 23, 204; 4 Phil. Ev. 453; 1 Salk. 385; 4 Peters' Rep. 83 ; 1 Phil. Ev. 367; 1 Rus. Ch. Rep. 601; Coke, Lit. 352; 2 Johns. Rep. 382 ; 17 Mass. 432 ; 2 Pick. 425 ; 4 Binney, 231; 22 Eng. C. L. R. 73; 27 Eng. C. L. R. 289; 32 Eng. C. L. R. 42.

Rodney, for the defendant:

The question in regard to the recital in the deed from King to Lowber, which the Court in the charge left to the jury, was this: What was the land conveyed to King by the deed of bargain and sale from Howell and Shelton and his wife to him, and which he afterwards sold and conveyed to Lowber ? And the Court, after propounding that question to the jury, very properly instructed them that if the recital contained in the deed from King to Lowber stated that King had taken under the conveyance to him from Howell, Shelton, and wife, but the fourteen acres of the forty-two acres claimed by the plaintiff, by virtue of, the conveyances from those parties to King, and from King to Lowber, through whom the plaintiff derived his title, then it would amount to an admission as to the quantity of land conveyed and intended to be conveyed to the latter by the former, which would conclude them, and all claiming under them, from setting up any title to the twenty-eight acres, the residue of the forty-two acres, under or by virtue of that deed. For the recital of a fact like that in a deed was conclusive evidence of the fact in itself; and any party or privy to the deed and the estate taken under it, was precluded and estopped from contradicting or denying it. 2 Stark. Ev. 17, 704; 1 Stark. Ev. 95; 44 Law Libr. 479. On that point the question before the jury was, whether King took the whole of the forty-two acres by the deed of Howell and others to him; and whether Lowber took the same from him or only the fourteen acres, a part of it ? And he contended that it was recited in the deed from King to Lowber that

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King took but the fourteen acres; and if so, the plaintiff was concluded by it from setting up any claim to the twenty-eight acres, and the Court in the charge sustained the position which he had assumed in his argument before them.

On the other ground of exception to the charge of the Court the counsel for the plaintiff had insisted that, on a mere possession of less than twenty years, without any other claim or show of right or title, a party may recover in an action of ejectment as against a mere trespasser or wrong-doer, who ousts or dispossesses him without any color of title, and he had cited several authorities to sustain that principle; but it had been ruled otherwise in this State, and that, too, after the citation of some of the same eases, and particularly from New York, which had now been produced. In the case of Lore’s Lessee v. Hill, 3 Harr. 530 , the contrary of this was ruled as the law in this State; 'that the plaintiff in ejectment must recover on the strength of his own title; that there could be no weighing of titles between him and the defendant, whose possession was good enough for him until the plaintiff showed a valid legal title in himself. That, added the Court, was the general rule, and had been regarded as the settled law of this State, and it was now too late to question or disturb it.

According to the law, as recognized by the courts of this State, an action of ejectment cannot be maintained on the ground of possession alone short of twenty years, against a mere trespasser, who enters without any color or claim of title and ousts the party in possession, although there are decisions to the contrary in some . of the other States, and particularly in Yew York. The general rule on the subject was, that the plaintiff, in an action of ejectment, must establish a legal title in himself to the premises, and must recover on the strength of that title, and not on the weakness or insufficiency of the defendant’s ; and no possessory right merely, short of twenty

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years’ uninterrupted possession, was sufficient here for that purpose. Such had always been the ruling and determination of the courts in this State.

In regard to the other ground of objection to the charge, the Court submitted the point made as to the effect of the recital in the deed from King to Lowber, to the jury, substantially as stated by the counsel for the defendant,—that it was in itself evidence of the fact recited in the deed in the nature of an admission by both parties to it, and as such would conclude the defendant, so far as his claim to the land depended on it and he derived his title under that conveyance, from claiming anything contrary to the tenor of it. We are, therefore, still of opinion that the views of the Court, as then expressed on both points, are correct, and the rule must' consequently be discharged and a new trial refused.

Cases cited

Lessee of Lore v. Hill 3 Harr. 530 Del. Super. Ct. p. 182