Fletcher v. Fuller

delivered the opinion of the court.

This is ah action of ejectment to recover possession of twenty-seven twenty-eighths undiyided parts of a tract of land, containing about- fourteen acres, situated in the . town of Lincoln, formerly. Smithfield, in- the state of Rhode Island. The plaintiff, a citizen of Connecticut, sues the defendants,', citizens of Rhode Island, in his own right and as trustee for othérs. .

' The declaration contains several counts, all of which exdept two are withdrawn. In these the plaintiff alleges that on the 25th of October, 1874, he was “seized and possessed in his demense as of fee in his own right and as trustee ” of twenty-seven twenty-eighths undivided parts .of the tract of land which is;described, and that the defendants on that day and. year, with force and arms, entered thereon and ejected him therefrom, and have ever since withheld the possession, to his damage of one thousand dollars. The two counts differ merely in the description of some of the boundary lines of the tract. The defendants pleaded the general issue and twenty years’- possession under the statute of' possessions/ IJpon- these pleas issues were joined and the case was tried, the parties stipulating that the plea of the statute should be held to apply to any period or periods of twenty years that could be covered by any other like plea that might have been filed, and tjiat either party might offer any evidence and rely upon any matters that would be admissible under such plea or pleas, and any proper replications or other proceedings thereon. The case was tried three times, resulting the first time in a verdict for the defendants, and at the other times in a verdict for the plaintiff. The judgment on the last verdict' is brought before us for review by the defendants on a writ of error. Numerous exceptions were taken in the progress of the trial to the rulings of the court in the admission and rejection of evidence, and to the instructions given and refused to the jury. But the conclusions we have reached with respect ’to the instructions given and refused as to the presumption of a deed to the ancestors in- title of the defendants, render it unnecessary to consider the others.

The plaintiff claims to derive title under the will of Francis Richardson dated May 26, 1749, and the codicil thereof dated , August 10, 1750, which were admitted to probate in Massachusetts, January 19, 1756. A copy of the will and codicil, and of the Massachusetts probate, was produced and given in evidenqe, together with a certificate of their having been filed . and recorded in the probate office in Lincoln on the 27th of August, 1881. '

It does not appear that there was any direct evidence that' Francis Richardson was seized of the 224-acre parcel at the time of his death. The presumption, in the absence of any opposing circumstances, is undoubtedly that', being the owner at the date of the codicil, August 10, 1750, he continued such ^ owner up to the time of his death, which occurred some years, afterwards. ’Whether-sufficient opposing circumstances to rebut this presmnption are found in the absence of all claim to the. land for three quarters of a century by the devisee or her husband, or her heirs, and the continued claim of ownership by the ancestors in -title of the defendants during that period, is a question to be hereafter considered.

It is stated in the record that there was evidence tending -to show that Abigail Fuller, the devisee, and her husband entered into possession of the property devised under the will and codicil, but what that evidence was does not appear.' Abigail died prior to 1766, leaving her husband surviving her. He left Smithfield sometime in 1761 “for parts unknown.” It appears also that in a deed executed by him on the 11th of April, 1761, of the 20-acre lot designated on the diagram, he. recited that such lot was bounded on the north by “ his former land.”

- When Ezekiel Fuller departed from Smithfield in 1761, he left two children, Francis and Abigail, without means of support, and at a meeting of the town council in September following, proceedings were -taken to provide for them. In a > resolution reciting that “ Ezekiel is gone, we know not where; ” that his children were then and likely to be chargeable to the . town, that little or nothing of Ezekiel’s estate was to be found to support them, but that it was assumed thére was some estate belonging to him, a pferson was appointed to make proper ■ inquiry and search for it, “ to know what -land there is belongs ing to the family of said Ezekiel and secure the same for’the support of the children.” It would seem that the person, thus

• Abigail, the wife of Ezekiel, left five children surviving her, all of whom died before their father except Abigail, Jr., who was one of the two supported by the town. The father, who disappeared from Smithfield in 1761, died in the poor-house in Attleboro, Massachusetts, in 1800.. Abigail, the daughter, was born December 29, 1757, became of age December 29, 1778, and was married to Benjamin Fuller December 1, 1779. He died in 1832, and she died in 1835, intestate. The plaintiff is the grandson of this Abigail,- and the parties for whom he is trustee are her -other descendants. They all derive whatever title they have from her.

'On the 24th of May, 1874, a century and eighteen years after the probate of the will of Francis Richardson, all the heirs of Abigail Fuller, except one, executed a power of attorney to Theodore O. Fuller, also one of said heirs, authorizing him to sell to Nathan Fuller, the plaintiff in this action, all their title and interest in the tract conveyed by James Reed to Francis Richardson by deed dated'April 10, 1750, and devised to Elizabeth Fuller, wife of Ezeldel, by his last will arid testament probated January 19, 1756, to hold the same upon trust to

The same grantors, by their attorney, on the same day, executed a deéd of the same'tract-of land to Nathan Fuller, reciting a consideration of ten dollars, upon trusts similar to those contained in-the power of attorney. Both documents were duly acknowledged by the grantors. The delivery of the deed was made by the attorney in this way.- - He and the grantee went iipon the land with three other persons, and’ whilst upon it he delivered the deed to the grantee. He also took up some earth in his hands and passed it to the grantee. This he had been instructed to do by his counsel as the form of delivering possession. The parties were about fifteen minutes .on the land. There was no evidence of any notice to or -knowledge by the defendants of these acts, and they testified that they had neither. This is the case of the plaintiff briefly stated.

The defendants trace their title to the land, in question by continuous claim of title from a deed of the 22^-acre parcel made by one Jeremiah Richardson, a grandson of the testator, Francis Richardson, to Stephen Jencks, dated April 8, 1768, containing full covenants of title and warranty, and recorded in the records of Smithfield on July’ 10, following. Jeremiah Richardson was the son of Francis Richardson, who was a son of-the testator, and is named in the will as having died. Jeremiah had a brother, also called Francis Richardson, wlio died prior to .March, 1766. Stephen Jencks, by deed dated August' 12,1796, containing full covenants of warranty, to secure séveral notes, amounting to $3000, mortgaged the land in controversy, with adjoining lands to which he had acquired title, making in all 50 acres; of which the 20-acre lot, designated on the diagram, was one parcel, which he. had piirchased in 1763 for £610, and the six-acre lot, also designated' on the diagram, was another parcel, which he had purchased in 1768 for £15. He died in 1800, leaving a will, by which he devised his real estate in Smithfield and'elsewhere to his children.

• The land was not enclosed on the line of the turnpike. In 1838 a fence was put up on the westerly side by an adjoining owner. On the southerly side there was at one time a fence running from the turnpike westerly to the other side of the ledge hereafter mentioned, but it disappeared in 1835. On the northerly line there was only a brush fence until 1867, when a purchaser of adjoining land erected one. The land has never been put under cultivation. Prior to 1858 it was covered with wrood; and every year from 1829 to 1857 the ancestors of the defendants cut wood upon it for family use. In 1857 the father of the defendants cut and applied to his use all the wood of value then remaining. The land had an éxtensive ledge of rock running across its centro from north to south, which was opened by defendants’ ancestors as early as 1835. In 1845 or 1846 large quantities of stone were quarried and sold by them to railroad companies; and from that time down to the trial, with longer or shorter intervals, never of more than a year or two, the iedge was worked more or less extensively by the defendants or their ancestors in title, or their lessees and tenants, and the stone removed. There is no evidence that any other person had ever worked the ledge or

Upon the case thus presented, and we have not-omitted, we think, any material circumstance in the statement, the defendants asked an instruction to the jury as to .the presumption they might make of a lost grant to their ancestor in title, which, the court refused. Its charge was thus:

“ Of course, gentlemen, if you find that you can jjresume a grant, if you find from the .testimony that there was a lost deed which passed from Abigail Fuller to Jeremiah Richai’dson, or to Francis Richardson, and the property was inherited by Jeremiah, so that Jeremiah had a good title to convey to Stephen Jenoks, that makes the title of the defendants here

The defendants requested the court to instruct the jury “that the presumption they were authorized to make of a lost deed was not necéssarily restricted to what may fairly be supposed to have occurred, but rathér to what may have occurred and seems requisite to quiet title in the possessor.” This instruction the court refused to give, or to modify its charge in conformity with it. The defendants now contend that the court thus erred, its charge being in effect that in order to presume a lost deed • the jury must be satisfied that such a. deed had in fact actually existed. Such seems to us to be the purport of the charge, and therein there was error.

In such cases “presumptions,” as said by Sir "William Grant, “ do not always proceed on a belief that the thing presumed has actually taken place. Grants are frequently presumed, as Lord Mansfield says, Eldridge v. Knott, Cowp. 215, merely for the purpose, and from a principle of quieting the possession. There is as much occasion for presuming conveyances of legal estates; as otherwise titles must forever, remain imperfect, and in many respects unavailable; when from length of time it has become impossible to discover in' whom the legal estate (if outstanding) is actually vested.” Hillary v. Waller, 12 Ves. 239, 252.

The owners of property, especially if it be valuable and available, do not often allow it to remain in- the- quiet and ' unquestioned enjoyment of others. Such a course is not in accordance with the. ordinary ^conduct of men. When, therefore, possession and usé are ' long .continued, they create a presumption of lawful origin, that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission-to occupy and use was given orally, or upon a contract of sale, with promise of a future conveyance, which parties have subsequently neglected

The death of parties may leave in the'hands of executors or heirs papers constituting muniments of title, of the value of which the latter may have no knowledge, and therefore for the preservation and record of which may take no action; and thus the documents may be deposited in places exposed to decay and destruction. Should they be lost, witnesses of their execution, or of contracts for their execution, may not be readily found, or if found, time may have so impaired their recollection of the transactions, that they can only be impen-. fectly recalled,- and of course imperfectly stated. The law, in tenderness to the infirmities of human nature, steps in and by reasonable presumptions, that acts to protect one’s rights, which might, have been done, and in the ordinary course of 'things generally would be done, have been done in the particular case under cohsideration, affords the necessary protection against ■ possible failure to obtain or to preserve the proper muniments of title, and avoids the necessity of - relying upon the fallible memory of witnesses, when time may have dimmed their recollection of past transactions; and thus gives peace and quiet to long and uninterrupted possessions.

The rule of presumption, in such- cases, as has. been well said, is one of policy, as well as of convenience, and necessary for the peace and security of society. “Where one uses an easement whenever he sees fit, without asking leave and without objection,” says the Supreme Court of Pennsylvania, “ it is adverse and an interrupted adverse enjoyment for twenty-one years.is a title which cannot afterward be disputed. Such

It is not necessary, therefore, in the cases r ¡.entioned, for the jury, in order to presume a conveyance, to believe that a conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that the conveyance might have been executed and that its existence would be a solution of the difficulties arising from its non-execution. In Edson v. Munsell, 10 Allen, 557 , 568, which was an action for obstructing the enjoyment of an easement, the doctrine of acquiring such rights by prescription or adverse possession is elaborately considered; and it is there said, that “ the fiction of presuming a-grant from twenty years’ possession or use was invented by the English courts in the eighteenth century to avoid the absurdities of their rule of legal memory, and was derived by analogy from the limitation prescribed by the St. of 21 Jac. 1, c. 21, for actions of ejectment. It is not founded on a belief that the grant has actually been made in the particular case, but on the general presumption that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing long continued possessions.”

In Casey’s Lessee v. Inloes, 1 Gill, 430 , 503 [S C. 39 Am. Dec. 658 ], which was an action of ejectment, the Court of Appeals of Maryland held that where there had been a con

In Williams v. Donell, 2 Head, 695 , 697, which was also an action of ejectment, the Supreme Court of Tennessee, speaking on' the same point, said: “ It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that in reality a grant ever issued. It will be a sufficient ground for the presumption to show that, by legal possibility, a grant might have issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.”

In accordance with the doctrine thus explicitly declared, there can be no doubt that the court below should have instructed the jury as ^requested. It would seem from the instruction given that'the deed which the defendants insisted might be presumed was one from Ezekiel and Abigail Fuller, or from Abigail Fuller to Jeremiah Kichardson. We think, however,'that the facts point with equal directness to a conveyance from his grandfather. The codicil to his will,' by which he devised the property to his married daughter, was dated several years before his death, and there was no evidence that he was seized of it at that time, except the presumption

■ If, however, the evidence which, as the record says, tended to show that the devisee and her husband entered into the possession of the property devised, 'and the recital in his deed of April It, 1161, of the 20-acre parcel, that it was bounded on the north’by his former land, can be considered as rebutting the presumption of such a deed by the testator, then the defendants may fall back on the presumption of' a deed to Jeremiah Nichardson by Ezekiel and Abigail Fuller, the de

For the refusal of the court below to give the instruction requested, the case must go back for a neAv trial. We will add, moreover, that though a presumption of a deed is one that may be rebutted bjr proof of facts inconsistent with its supposed existence, yet where no such facts are shown, and the things done, and the things omitted, with regard to the property in controversy, by the respective parties, for long periods of time after the execution of the supposed conveyance, can be explained satisfactorily only upon the hypothesis of its existence, then the jury may be instructed that it is their duty to presume such a conveyance, and thus quiet the possession.

How long a period must elapse after the date of the supposed conveyance before it may be presumed to have existed has not always been a matter of easy detennination. “In general,” said this court, speaking by Mr. Justice Story, “it is the policy of courts of law to limit the presumption of grants to' periods analogous to those of the statute of limitations in cases where the statute does not apply. But Avhere the statute applies, it constitutes, ordinarily, a sufficient title or defence, independently of any presumption of a grant, and, therefore, it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as Avell be made in the one case as in the other; and AArhere the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations.” Ricard v. Williams, 7 Wheat. 59 , 110.

This presumption may, therefore, in some instances, be properly invoked where a proprietary right has long been exercised, although the exclusive possession of the whole property, to which the right is asserted, may have been occasionally interrupted dui’ing the period necessary to create a, title by adverse possession, if in addition to the actual possession there were other open acts of ownership. If the interruptions did not impair the uses to which the possessor subjected the property, and for which it was chiefly valuable, they should not necessarily" be held to .defeat the presumption of the rightful origin of his claim to which the facts would otherwise lead. It is a matter which, under proper instructions, may be left to the jury.

, In the present case, act§ of -ownership over the property in controversy by the ancestors in title of the defendants, so far as they could be manifested by written transfers of it, either as conveyances of title or by way of security, were exercised from 1708 for more than a century. -The first conveyance, from which the defendants trace their title, was duly recorded in the In nd records of the town soon after its execution in that year. The-assessment of taxes oh the property to those ancestors, and their payment of the' taxes for twenty years between 1770 and 1805, and the assessment of taxes to them or to the defendants for seventy-seven years after 1805, and the payment of'the taxes by them, such assessment being required to be made, under the laws of the state, to occupants or owners

In St. Louis Public Schools v. Risley’s Heirs, the Supreme Court of Missouri said: “ Payment of taxes has been admitted in questions of adverse possession, and may have an important bearing, as it is not usual _ for one owning realty to neglect 'paying taxes for a period which would be sufficient to constitute a bar undér the statute of limitations, or for one to pay taxes having no claim or color of title.” 40 Missouri, 356, 370. In Davis v. Easley, which was an action of ejectment, the Supreme Court of Illinois held that receipts for taxes paid by the plaintiff were admissible, and said: “ The payment of taxes indicated that the plaintiff claimed title to the whole tract. It likewise tended' to explain the character and extent of his possession.” 13 Ill. 192 , 201.

In this ease, the ancestors of the defendants entered upon the land under claim of title, and opened and worked the ledge of rock running through it as early as 1835, and from 1846 they or their tenants or lessees continued, with occasional intervals, to work that ledge, to the time of trial in 1882, a period of thirty-six years, and it does not appear that during that time any one ever interfered with their work or complained of it. To constitute an adverse possession it, was not necessary that they should have actually occupied or enclosed the land. It was sufficient that they subjected it to - such uses as it was susceptible of to the exclusion of others. Ellicott v. Pearl, 10 Pet. 412 , 442. That subjection might be shown by the quarrying of the ledge and the removal of the stone, without disturbance or complaint from any quarter. The exclusive working of the quarry, under claim of title to the whole tract by virtue of conveyances in which it was described, might operate in law to carry the possession over the whole; and the payment of taxes thereon might authorize the jury to infer

The entry of the plaintiff with the attorney of his co-heirs in 1874, and the delivery of the deed to him with a handful.of earth, if weight and consideration are to be given to that proceeding under the circumstances in which it was made- would only reduce the period of undisturbed possession to twenty-eight years. The cutting of wood on a different portion of the land by the Fullers fop family use, or the manufacture of baskets, at occasional intervals during a portion of this period, though competent for the consideration of the jury, was not necessarily an interruption to the peaceable occupation of the land, so far as quarrying of the ledge and the removal of the stone were concerned, to which uses the defendants and their ancestors in title subjected it, and which appear to have constituted its principal value. Nor did it necessarily change the legal effect of the possession for quarrying the ledge with the attendant claim to the -whole tract.

In Webb v. Richardson, the Supreme Court of Vermont, in speaking of interruptions in the actual occupancy of real property as affecting the claim of continuous possession, said: “To constitute a continuous possession it is not necessary that the occupant should be actually upon the premises continually. The mere fact that time intervenes between successive acts of occupancy docs not necessarily destroy the continuity of the possession. The kind and frequency of the acts of occupancy necessary to constitute a continuous possession depend somewhat on the condition of the property, and the uses to which it is adapted in reference to the circumstances and situation of the possessor, and partly on his intention. If, in the intermediate time between the different acts of occupancy, there is no existing intention to continue the possession, or to return to the enjoyment of the premises, the possession, if it has not ripened into a title, terminates, and cannot afterwards be connected with a subsequent occupation so as to be made available toward gaining title; -while such continual intention might, and generally would, preserve the possession unbro

Our conclusion is, that the claim to the land in controversy by the defendants and their ancestors in title for over a century, Avitli the payment of taxes thereon, and acts of OAvhership suited to the condition of the property, and its actual use for thirty-six or twenty-eight years, it matters not which, Avould justify a presumption of a deed to the original ancestor, Jeremiah 'Richardson, to quiet the possession of the defend; ants claiming under him, and the jury should have been permitted to presume such a deed without finding from the testimony that there was in point of fact a deed A\diich Avas lost. If the execution of a deed was established, nothing further would be required than proof of its contents ; there Avould be no occasion for the exercise of any presumption on the sub-' ject. It is only AAdiore there is uncertainty on this point that the presumption is indulged to quiet the possession.

The judgment of the court below -must be reversed, cmd the cause remanded for a new trial.