The opinion of the court was delivered, May 11th 1869, by
Agnew, J.One objection to the release pinned to the deposition of John B. Quick was well founded. It was not identified as an exhibit accompanying the deposition. The deposition and all the other papers were fastened together in the usual way; but this paper was merely pinned between the leaves, leaving it without any evidence that it was attached by the justice who took the deposition. It is not referred to in the deposition or in any certificate, or by any endorsement upon it. No parol evidence was given to show that it was produced before the justice, or was returned with the deposition. In that it was in no wise identified. Under these circumstances, as a mere exhibit accompanying the deposition, it was not evidence, as is shown by the following cases: Petriken v. Collier, 7 W. & S. 392; Dailey v. Green, 3 Harris 127; Dixey v. Israel, 4 Wash. C. C. R. 323; 3 Barr 422. But this paper was a release of all warranties, covenants and liabilities contained in the deed from John B. Quick to Peter A. L. Quick. It fell within the words of the Act of 18th March 1775, as a deed concerning lands, tenements, hereditaments, and was therefore entitled to be proved or acknowledged and recorded. A general warranty is a real covenant descending with the title, and passes to the assigns by its express terms. It is often important to a purchaser to see that the title is defended by covenant of warranty. It is a part of the deed, and evidently concerns the land which is conveyed by it. Perhaps it might be important the release should be recorded to protect the warrantor against the suit of a subsequent purchaser without actual notice of the release. This release was duly executed and acknowledged nearly a month before the deposition was taken. It was evidence, therefore, under the recording acts, that John B. Quick had been released from all liability quoad the land in suit.
The second assignment of error cannot prevail, the objection to the offer was general and the evidence subsequently received took away the ground of objection, if any.
The third assignment has more substance. The defendant offered in evidence the deposition of John M. Cooper and a copy of the articles of association referred to in it, which was objected to on the ground that there was no evidence of the loss or destruction of the original articles. Cooper states expressly that the original articles were sent, he thinks several years ago, to some attorney in Wilkesbarre, and have since been lost; that diligent search has been made for them and they could not be found; that exhibit B. attached to the deposition is a verbatim copy of the articles of association. In the absence of any cross-examination *340to explain, or other evidence to disprove the statement, it is difficult to see why the proof of loss and search was insufficient. The testimony of E. B. Harvey, given afterwards by defendant, certainly corroborates rather than contradicts Cooper’s testimony. But resting on Cooper’s testimony as the offer did, it seems to have been error to reject it. No objection was made to the proof of the existence of the original articles. The 4th and 5th errors follow that just considered. The 6th assignment must be sustained. The objection to the testimony of Jacob R. Quick as to the conversation between' P. A. L. Quick and Mr. McOlintock, was rested expressly on the ground that the question was leading in its form. It clearly was so, as it indicated just the answer the party desired. This is the rule as to what are leading questions. Selin v. Snyder, 7 S. & R. 166; Summers v. Wallace, 9 Watts 163. The form of the question was, “ whether P. A. L. Quick asked McClintock. if his rights would be in any manner affected by that suit, and that McOlintock replied that they would not, and that he might go home.” The purpose here was to get MeClintock’s reply to P. A. L. Quick’s question, and instead of asking what he said in reply, the answer to be made by McClintock is immediately embodied in the question, indicating at once the answer expected. The objection was made and the ruling excepted to, and we cannot deny the party the benefit of it. The only other question that we need consider is that raised in the 9th, 11th, and 13th assignments of error, as to the evidence sufficient to prove an ouster between tenants in common. The pith of the judge’s charge is that from an open, notorious and uninterrupted possession of John B. Quick and P. A. L. Quick, through their tenants, for twenty-one years, claiming the whole in their own right, leasing the property to tenants as their own, and taking the rents and profits exclusively, the jury might infer an ouster of their co-tenants. This is the law as it has been held in this state since Frederick v. Gray, 10 S. & R. 182; Mehaffy v. Dobbs, 9 Watts 377; Law v. Patterson, 1 W. & S. 184; Bolton v. Hamilton, 2 W. & S. 294; Calhoun v. Cook, 9 Barr 226; Keyser v. Evans, 6 Casey 507; Rider v. Maul, 10 Wright 376. A mere reception of the profits and claim of the land will not alone prove an ouster. There must be positive acts or a line of conduct indicating an intention to exclude the co-tenants. This has been said in Hart v. Gregg, 10 Watts 185; Forward v. Deetz, 8 Casey 68; Bennet v. Bullock, 11 Id. 364; Tulloch v. Worrall, 13 Wright 133.
In none has it been more strongly asserted than in Hart v. Gregg, but a dictum in that case somewhat wider than was called for, was afterwards criticised and qualified by Chief Justice Gibson, in Bolton v. Hamilton, 2 W. & S. 299, and Calhoun v. Cook, 9 Barr 227. What is said by Justice Thompson in Forward v. Deetz had reference to the facts of that case and was properly qualified by *341himself, in saying that it was not intended to assert there, that an ouster may not be presumed from great lapse of time and the circumstances. Every ease must be judged of by its facts. It is therefore certainly the law that open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself, is evidence from which a jury may draw the conclusion of an ouster and an adverse possession. The distinction is that it does not afford a legal presumption, which would entitle the court to withdraw the question from the jury, and instruct them that they must infer an ouster, but it constitutes a natural presumption, or is competent evidence, from which the jury may infer an ouster and adverse possession, if not successfully rebutted. But the question of fact must be determined by the jury, for it may appear from all the circumstances that the possession is not adverse, notwithstanding the long continued reception of the profits. Every case depends on its own circumstances, as to the strength of the conviction it produces* and hence it must be left to the jury under a proper instruction, to determine whether the fiduciary character of the relation has been determined by a decisive act, or by a course of conduct bringing home notice to the party to be affected by it, of the change in the character of the possession. In the eases of express trust, or where there is a direct confidence created by the instrument, as between trustee and cestui que trust, landlord and tenant, mortgagor and mortgagee, &c., the evidence to show a denial of the relation, will always have to be stronger to produce conviction, than in those where the relation is less direct and and confidential, as between co-tenants. Rush v. Barr, 1 Watts 110; Martin v. Jackson, 3 Casey 504. McMasters v. Bell, 2 Penna. 180; Brandon v. Bannon, 2 Wright 63. Yet in all cases the rule is the same, to wit: that the relation must appear to have been severed by such positive acts, or continued conduct as tend to bring home notice to the party to be affected, of the change in the relation, and that the possession is adverse to him.
The remaining assignments of error need no special notice. They are not sustained. As a whole the change was fair and accurate, and the case was left to the jury in a very intelligible manner.
Judgment reversed and a venire facias de novo awarded.