May 20, 1907. The opinion of the Court was delivered by The facts of this case are fully set out in the decree of the Circuit Court, which, together with the exceptions, will be reported.
The first question that will be considered is whether the Circuit Judge erred in finding that the tract of land containing one hundred forty-nine and one-half acres was intended to be an advancement to William McCutchen, deceased, and that the same should be charged as such against his widow and children.
It is admitted that B.J. Barrett conveyed the land in question to Elias J. McCutchen on the 27th of December, 1880, in consideration of $2,242.50.
The testimony introduced both by the plaintiffs and the defendants shows that William McCutchen entered into possession of the land in 1881, by permission of his father, Elias J. McCutchen. These facts unexplained were sufficient to show that said land was subject to partition, and cast upon the defendants the burden of proving otherwise.
There were two ways in which the appellants might have shown that the land could not be considered as an advancement: First. By testimony to the effect that William McCutchen entered into possession of the land under an agreement *Page 138 with Elias J. McCutchen, whereby William McCutchen was to become the owner of the land in consideration of the amount due him by Elias J. McCutchen for services rendered. It would, however, be necessary to prove such agreement by clear and definite testimony, which was not done in this case. Second. By proving that the rights of Elias J. McCutchen were barred by the statute of limitations, adverse possession, or lapse of time sufficient to presume a grant.
The general rule as to the right of a party who has entered into possession of land permissively, to show that he has thereafter become the owner of the land, is stated in the case of Wilson ads. Weathersby, 1 N. McC., 373. In that case the action was to try title; the jury rendered a verdict in favor of the plaintiff, and the defendant made a motion for a new trial on the following grounds:
"1. Because the Court refused to permit the defendant to give in evidence his title, there being no evidence that he was the tenant of the plaintiff at the time of acquiring the same.
"2. That the defendant was not, at any time, the tenant of the plaintiff."
On the first ground the Court used this language: "The evidence offered by the defendant was of a title acquired by him after he went into possession under the plaintiff, and before he gave up possession. If he was at any time the tenant of the plaintiff, he continues so till this time, unless he had given up the possession. The attempt to evade the rule of law, by going out of possession for a moment, and then returning into possession, did not change his situation at all, and especially as he left another person in possession; so that his possession was altogether unbroken. A distinct and bona fide abandonment of the possession, at least, was necessary to have put him in a situation to dispute the plaintiff's title."
On the second ground the Court said: "The defendant was not indeed, a tenant, under a lease for years, reserving *Page 139 rent, but he, nevertheless, held under the plaintiff. But this ground is founded on a misconception of the principle, which is not confined to cases of tenants, in the common acceptation of that term; there cases have only furnished examples of the application of the principle, which is, that wheresoever a defendant has entered into possession under the plaintiff, he shall not be permitted, while he remains in possession, to dispute the plaintiff's title. He has a right to purchase any title he pleases, but he is bound bona fide to give up possession and to bring his action to try title and recover by the strength of his own title. Jackson, ex dem.Smith v. Stewart, 6 John. Rep., 34; Galloway v. Ogle, 2 Binney, 471."
This principle, however, does not apply when there has been a disclaimer of tenancy, unequivocal notice of that fact to the landlord, and a subsequent adverse possession for the statutory term. Milhouse v. Patrick, 6 Rich., 350. Nor does it apply where there has been an adverse holding for a length of time sufficient to raise the presumption of a grant.
From the facts in this case it cannot reasonably be inferred that the possession of William McCutchen ceased to be permissive, that he or his heirs acquired a title by adverse possession, or that his possession was such as to raise the presumption of a grant.
We next consider whether his Honor, the Circuit Judge, erred in his rulings as to the admissibility of testimony, as charged in the second exception, which is as follows: "Because his Honor erred, it is respectfully submitted, in receiving and considering the testimony for the plaintiffs, over the objection of the defendants, as to the declarations of the intestate with reference to the said tract of land as an advancement, and that he erred in receiving and considering the testimony of the witnesses for the plaintiffs, Thomas J. McCutchen, James E. McCutchen, and others, in reference thereto, and should have held that the declarations of the intestate were hearsay, were self-serving *Page 140 declarations, and were within the inhibition of section 400 of the Code of Procedure."
It is admitted on all hands that William McCutchen entered under his father, and there is no sufficient evidence that he ever acquired title by grant or by the necessary adverse possession. Therefore, as we have seen, the utmost his heirs could claim would be that the land was given to him as an advancement. As the law placed upon William and his heirs the burden of supporting their claim, by showing that William had become the owner of the land under an agreement that he should have it in consideration of services rendered, or by adverse possession, and as they have failed to make such proof, the presumption of law was that it was held by William and his heirs as an advancement from his father. In this view the declarations of Dr. McCutchen as to his title or his intention that William should have the land as an advancement were not material, and even if they were excluded the result would be the same.
The last question for consideration is whether the Circuit Judge erred in ordering that the value of the land and the amount of the improvements should be determined by commissioners. This question merely involved the exercise of a discretionary power on the part of the Judge, and it has not been made to appear that his discretion was abused.
The tenth exception was abandoned.
The conclusion of the Court upon the foregoing questions is without prejudice to the right of the parties to the accounting mentioned in the eleventh exception.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. *Page 141